Flood of 2011 anniversary: Limbaugh: Corps had law on its side in levee breach

Friday, April 27, 2012
Workers smooth the land west of the intentional breach in the Birds Point levee April 11 in Mississippi County. (Laura Simon)

It is still the biggest case that has been heard in the new federal courthouse in Cape Girardeau. The corridors and courtrooms were filled April 28, 2011, with contingents from Missouri, Illinois and Kentucky arguing that steps should be taken to protect their land and livelihoods while, outside, record flooding threatened, inch by inch, to wipe out residents along the Mississippi and Ohio rivers.

The U.S. Army Corps of Engineers was preparing to blast holes in the Birds Point levee, inundating 130,000 acres of Missouri farmland in Mississippi and New Madrid counties with water, in an effort to prevent even more extensive flood damage. The emergency plan guiding them hadn't been activated for more than 70 years and generations living in the shadow of that possibility hoped they'd never see it happen.

Gov. Jay Nixon; Lt. Gov. Peter Kinder; U.S. Rep. Jo Ann Emerson, R-Cape Girardeau; and other Missouri politicians were applying pressure to stop any action that would cause harm to Missouri farmers.

Attorney General Chris Koster said he had little time to prepare after being made aware of the corps' plans by attorneys in the state agriculture and environmental divisions. He filed a temporary restraining order April 25, 2011, which was fast-tracked through the system.

Three days later, amid passionate voices, a Cape Girardeau native was given the task of determining who had the law on their side -- Missouri landowners in the floodway represented by Koster or the corps.

After listening to more than five hours of testimony that Thursday, U. S. District Judge Stephen N. Limbaugh Jr. worked into the wee hours Friday morning, April 29, drafting his opinion.

Limbaugh recalled the tone in the courthouse as "concentrated and pressure packed" as parties on both sides presented the potential consequences and damages that might be suffered.

Koster argued that activating the floodway would violate the Missouri Clean Water Act because breaching the levee would cause the release of farm chemicals into the environment, polluting state water systems. He also contended that the corps' plan was an abuse of its discretion and unlawful under the Federal Administrative Procedures Act, which requires the corps to consider all alternatives and only activate the floodway if "absolutely essential."

"I drove through the area, and visited with many of the landowners whose homes, barns and outbuildings would be destroyed, so that we had firsthand knowledge of the damage before making our arguments in court," Koster said by email Thursday. "I was horrified by the thought of 130,000 acres going under water."

On the other side, attorneys for the corps were joined by representatives from the Illinois and Kentucky attorneys general offices and officials from threatened towns, including Cairo, Ill., who felt the levee breach was necessary to avoid a larger disaster.

At the time, Robert Lerned, a corps economist, estimated the potential damage to the floodway at $314 million, versus a possible $1.1 billion in losses in other areas in Missouri, Illinois and Kentucky if there were no relief from floodwaters.

The corps was following a plan created in response to the Great Mississippi River Flood of 1927, designed to prevent future tragic floods and ensure uninterrupted navigation of the river. Last revised in 1986, it dictated that the corps would purposefully breach the levee should the Ohio River reach approximately 60 feet on the gauge at Cairo. On the morning of the hearing, it had reached 58.67 feet, with water still rising.

The decision was hard emotionally, Limbaugh said, knowing the devastation that would be caused.

"I know some landowners down there. Some of them are friends, actually," Limbaugh said. "But that's part of the business of judging. You have to set that kind of thing aside."

In the end, Limbaugh said, the legal facts were straightforward.

"As I worked my way through the case, it became clear that ... the Corps of Engineers had both the facts and the law on its side," Limbaugh said in a recent interview.

Limbaugh issued his decision, which supported the corps' authority to act and found its actions careful and essential, at 8 a.m. April 29.

Immediately afterward, Limbaugh traveled to Cairo for the funeral of colleague and family friend Judge Dorothy Spomer, just hours ahead of the closing of Illinois Highway 3. About halfway there, he said, the roads were narrow passageways between houses that had already succumbed to water.

Undaunted, Koster appealed to the 8th U.S. Circuit Court of Appeals in St. Louis, who upheld Limbaugh's decision. The next step was the U.S. Supreme Court, where Justice Samuel Alito -- who handles emergency requests from Missouri and other Midwestern states -- also refused to stop the corps' plans.

On May 2, when the Cairo flood gauge reached 61 feet and was expected to rise at least two more, the corps detonated the levee.

Robert Anderson, public affairs officer for the Mississippi Valley Division of the U.S. Army Corps of Engineers, said last week that more than $112 billion in damages throughout the Mississippi River and Tributaries system were prevented by their actions last May.

"It seems hard to believe that almost half of Mississippi County was under water," Koster said in retrospect. "The city of St. Louis could have fit into that area three times.

"A lot of people said we shouldn't take it all the way to the Supreme Court because we wouldn't win. We decided to go to the Supreme Court because so many lives were affected. I am more certain today that this was the right decision than I was even then. The lesson learned is that the attorney general's job is to fight your hardest and to fight to the very end."

Still fighting are 140 farmers in the floodway who are seeking millions in damages caused by the levee breach. The lawsuit says that the breach destroyed and devalued property, constituting a "taking" of their land by the corps under the U.S. Constitution's Fifth Amendment, part of the Bill of Rights that protects against abuse of government authority in a legal procedure. The corps says the land was not permanently flooded, so the land was not taken. Oral arguments were heard April 10 by U.S. Court of Federal Claims Judge Nancy B. Firestone. Cape Girardeau lawyer J. Michael Ponder, who is representing the farmers, said he expects a ruling within 30 days.

salderman@semissourian.com

388-3648

Pertinent address:

Cairo, IL

Wyatt, MO

Map of pertinent addresses

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