More than 130 claimants join floodway lawsuit against federal government

Friday, July 15, 2011

Daniel Babb looks across his sodden farmland and sees lost opportunity. He hears the planting season's clock ticking, and he worries about all he stands to lose.

The Mississippi County farmer said he's trying to plant more than 200 acres he can't get to. The land is wet, the tractors and the planters can't move without getting stuck.

"We're about to run out of time -- that's what I'm afraid of," he said Thursday. "It's been a nightmare trying to get it in. It's pretty good dirt; we just can't do anything with it right now."

Between the lost winter wheat and the potential of the lost summer crop, Babb estimates he could be looking at hundreds of thousands of dollars in damage.

The 58-year-old farmer, who works land he owns and rents in the floodway, said he received a packet of updated litigation information in the mail Thursday afternoon.

Babb is one of 133 claimants, including one public entity, who have filed a lawsuit against the federal government, claiming the U.S. Army Corps of Engineers effectively took their fertile farmland when it breached the Birds Point-New Madrid levee and deluged some 130,000 acres.

The civil action, filed just hours after the corps began blowing the levee in May, claims the property owners' Fifth Amendment rights prohibiting a government taking property without just compensation have been violated by the activation of the floodway. The litigation, which seeks class-action status, counters the claims of the corps that the Army had the proper easements to unleash the historically high river into the floodway, a move that took pressure off Mississippi River communities elsewhere.

J. Michael Ponder, attorney for the claimants, said the government has asked for and received a 60-day extension in responding to the lawsuit, filed in a Washington, D.C., federal court.

Ponder, of Cape Girardeau-based Cook, Barkett, Ponder and Wolz, said he's hopeful the court will make a determination on the merits of the claim within the next six to eight months. He said he was not surprised by the delay.

"We anticipate the government will delay at every step, or will attempt to," he said, noting the firm has "opened a dialogue with the federal government" about the lawsuit.

An official with the corps did not return phone calls seeking comment.

The Consolidated Drainage District No. 1, as of Thursday, was the only governmental agency listed as a claimant, Ponder said.

The complaint has been amended with "beefed up" language, he said. Should the court find that flowage easements do exist on some of the properties, then the corps is obligated to make damage payments pursuant to the terms of those easements, Ponder said.

Gov. Jay Nixon toured the floodway Wednesday, impressed by the resiliency of the land.

"The highlight of this trip has been seeing some of those green sprouts coming up in some areas that were flooded," Nixon said at a news conference following the survey. "I think all of us were very, very fearful that what we were going to see was a situation where we lost a complete year in an entire area."

Despite the encouraging signs, Ponder says some may never farm their land again.

"What one cannot see beneath the crops is the removal of all of that topsoil, the leaching and the like that we have discovered based on our testing and analysis," he said. "That will have a long-range impact on the productivity of the land and the well-being of the county."

But things are much better than many expected during this spring's record floods, said Kendal Mouser, agronomy product manager for the Delta Growers Association in Charleston, Mo. He said many of the farmers he has spoken to are confident they will get some product in the ground this summer.

"They're not near as optimistic as what they were in January, when we were looking at record crop prices," Mouser said. "Most of them are getting the crop planted as good as can be expected."

Recouping damages may be another matter.

Missouri Department of Agriculture director Jon Hagler in May assured floodway property owners that federal crop insurance programs would cover their losses, even though the policies don't typically cover acts of man.

Those assurances aren't paying off, Ponder said. One claimant said he suffered $80,000 in damage to his standing wheat crop.

"He received a $400 check from crop insurance," he said.

Babb said he'll be lucky if he realizes 50 percent of his loss.

Babb, who says he's farmed in the floodway for nearly 35 years, said the uncertainty is the worst problem dogging property owners in the floodway.

"This is our livelihood. This is the breadbasket of our county. This is some of the greatest soil in the world. I would hate to see it go back into a swamp," he said.

mkittle@semissourian.com

388-3627

Pertinent address:

Mississippi County, MO

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