Judge holds off on decision in Birds Point hearing

U.S. District Judge Stephen N. Limbaugh Jr. was mulling what he described as "esoteric, technical" legal questions Thursday night after listening to more than five hours of testimony regarding whether the U.S. Army Corps of Engineers has the authority to blow a Mississippi County levee in an effort to control floodwaters.

Limbaugh recessed after 7 p.m. and said he would expedite a ruling on Missouri Attorney General Chris Koster's motion for a temporary restraining order. The ruling could be filed electronically overnight, though his decision was not expected to be made public until at least this morning.

The order, if granted, would block the corps' still-undecided plan to detonate explosives on the Birds Point levee in Mississippi and New Madrid counties to alleviate pressure of the floodwaters upstream.

But Limbaugh said he was not convinced it was his place to say.

"I'm really concerned about my authority to get involved," Limbaugh said.

Limbaugh cited an 8th Circuit Court of Appeals 1984 decision in "an almost identical case," which held that the corps had authority to manage the waterways. That court ruled that authority was beyond judicial review.

Limbaugh is looking at each of the state's counts, which maintain that the corps would be unlawfully adding pollution to the waters of the state and that the corps actions in implementing the plan to breach the levee is illegal because the corps has been "arbitrary, capricious and abused their discretion."

Illinois and Kentucky joined the lawsuit Thursday, intervening on the side of the corps. Tom Davis of the Illinois attorney general's office joined an already full room of lawyers at the Rush H. Limbuagh Sr. U.S. Courthouse in Cape Girardeau.

Koster and lawyers from his office argued that if the levee is breached, it would be a disaster for Southeast Missouri residents in the corps' proposed spillway.

"The devastation that is about to occur over this 130,000 acres will last for a generation or two generations, and every consideration needs to be given before this step is taken," Koster said before the hearing. "This should absolutely be a decision of last resort."

James Wilson, the former mayor of Cairo, Ill., and the executive director of the city's housing authority, was at the hearing and said he expects a ruling within 24 hours. Cairo, a city of 2,831 as of the 2010 census, sits at the confluence of the Mississippi and Ohio rivers, and its residents were asked Tuesday to voluntarily evacuate.

"Time is of the essence," Wilson said. "The river is rising as we speak. Our position is the Corps of Engineers is the experts of flood control. Nobody else is. The plan has been in effect since 1927, it's been reviewed several times. If you can't go with the experts for what you need for flood control, who can you go to?"

Cairo Mayor Judson Childs said blowing the levee is the only solution he can see to relieve pressure in Cairo and in other places.

"I'm hoping he will do the right thing," Childs said of Limbaugh. "It's lives versus land."

Childs, whose last day as mayor is Monday, also said he was disappointed with Missouri House Speaker Steve Tilley, who came under fire this week for saying he would rather flood Cairo than farmland in Missouri.

When Tilley, R-Perryville, was asked about seeing Cairo or the farmland underwater, he told reporters, "Cairo. I've been there. Trust me. Cairo."

"Have you been to Cairo?" he added. "OK, then you know what I'm saying then."

Tilley has since issued a written apology.

"As the Speaker of the Missouri House I came to the defense of Missouri, but in doing so I said some inappropriate and hurtful comments about the community of Cairo," the statement read. "I first want to apologize for my insensitive remark and personally apologize to anyone that I offended."

The statement added, "My commitment to the residents and farmers of Southeast Missouri should not have led me to insult another community and for that I am sincerely regretful."

But Childs said he was still a little upset.

"I thought that was very tacky for some appointed official to say that," Childs said. "It's a depressed area, so he's going to say let them drown? That's disappointing."

During the hearing, Koster's office called six witnesses and the lawyers for the corps called four. Charlie Kruse, former president of the Missouri Farm Bureau and director of the state's agriculture department, said enacting the plan to flood the spillway will send chemicals and herbicides into areas outside the spillway and pollute the nearby waterways. Silt will render much of the land useless for farmers for years to come, he said.

Davis Minton, deputy director for the Missouri Department Natural Resources, testified that the floodway has petroleum storage tanks, farm chemical storage buildings and propane gas tanks. The water, which will be unleashed at 550,000 cubic feet of water per second, will also wash away much of the land, residences and equipment, he said.

But Robert Lerned, an economist with the corps' Memphis District, said the financial cost could be much worse if the levee isn't breached. A study he conducted recently places financial loss at $314 million in Mississippi County if the levee is blown. That loss would come from damaged cropland, lost production and destroyed homes.

But if the levee isn't breached, the damage estimates could reach $1.1 billion, he said, in areas in Missouri, Illinois and Kentucky that would see worse flooding.

smoyers@semissourian.com

388-3642

Pertinent address:

Birds Point levee runs along the Mississippi River outside of Wyatt, Mo., on Thursday, April 28, 2011. A levee breach would flood over 100,000 acres of farmland in Southeast Missouri. (Kristin Eberts)

555 Independence St., Cape Girardeau, MO