Judge dismisses portion of floodway farmers lawsuit

A federal judge has tossed out a big portion of a class-action lawsuit brought by more than 140 Southeast Missouri farmers who are seeking millions from the U.S. government for damages caused by last year's intentional breaching of the Birds Point levee.

But the lawyer who represents them says the fight will go on with a two-pronged legal approach that he's optimistic will still get his clients what they want.

"The farmers are not giving up by a long shot," said Cape Girardeau lawyer J. Michael Ponder. "There's no reason for despair here. This is just a trimming of the claim."

Judge Nancy B. Firestone of the U.S. Court of Federal Claims in Washington, D.C., granted the government's motion to dismiss the first two counts of the lawsuit, saying the farmers did not make a valid "takings claim." A legal prerequisite for a government taking of land is that the farmers needed to show that there would be frequent, inevitable flooding in the future because of what was done by the government.

The May 2, 2011 breach was the second flood resulting from operation of the 130,000-acre floodway that sits in Mississippi and New Madrid counties.

"The first flood took place in 1937. Allegations of two floods separated by nearly 75 years are not enough to support an inference of frequent and inevitably recurring flooding," Firestone said in her written opinion.

But Firestone has yet to consider an amended complaint that Ponder filed on April 23, which now seeks damages for what the court filing describes as the government's failure to pay the plaintiffs for the damage caused by the sand and gravel deposits in violation of the easements. The motion calls it a "breach of contract claim" that Ponder says could get the farmers as much as a takings claim could. The motion claims, Ponder said, that the damage caused by the floodway activation was more severe than was allowable under the flowage agreements that were paid to property owners.

"In truth, the landowner probably doesn't care whether his damages get paid under count 1, which is the takings count, or count 2, which is a breach of easements count," Ponder said. "Just so long as the damages are paid."

Ponder intends to appeal Firestone's decision. He also is hopeful that the law on government taking will soon be redefined by the U.S. Supreme Court. In April, the high court agreed to hear a case brought by the Arkansas Game and Fish Commission, which has been fighting for seven years to get the government to pay costs the commission says the U.S. Army Corps of Engineers caused to its Dave Donaldson Black River Wildlife Management Area.

In its brief, the commission argued that it is entitled to compensation from the government under the Takings Clause of the Fifth Amendment for physically taking its bottomland hardwood timber on the wildlife management area through six years of prolonged flooding during the sensitive growing season. The Court of Federal Claims had awarded $5.78 million, finding that the corps destroyed and degraded more than 18 million board feet of timber by deviating from a water-control plan. But a higher court reversed the trial judgment.

"What the Supreme Court does will have a significant impact on our case," Ponder said. "We think the lawsuit is legally viable in the first instance. But the Supreme Court's decision will make it more clear to Judge Firestone that it's a legally cognizable claim."

Arguments before the high court could be heard as soon as this fall, Ponder said. As far as the remaining count on the lawsuit, Ponder said the court will likely enter a scheduling order setting a timeline for discovery before a trial.

Not all of the farmers are confident, however, that they will ever see damages from the government.

One of the plaintiffs is John Story, a fourth-generation farmer who grows wheat, corn and soybeans in the floodway along Highway 77. Story wasn't surprised the judge dismissed a portion of the lawsuit.

"It was a taking and of course the government's going to put their spin on it because they do whatever they want, whenever they want," Story said. "They have no regard for private ownership rights. ... I don't think we'll ever see a penny out of the government."

The government contends that easements signed when the floodway was created allow the corps to activate the floodway when needed, without having to provide extra compensation.

Story said he lost five houses when the corps breached the levee and inundated the floodway with river water to alleviate pressure on other parts of the river. Much of his equipment remains damaged and Story estimated he's spent hundreds of thousands of dollars in repairs.

For his part, Ponder said he's encouraged and committed to the process. He remains "convinced that equity requires justice for these farmers," Ponder said. "You can't have a situation where the federal government decides to harm one set of landowners for the benefit of others."

smoyers@semissourian.com

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