OMAHA, Neb. — A federal judge who found the government had “taken” hundreds of landowners’ property without “just compensation” is ordering the government to pay those farmers.
Judge Nancy Firestone’s ruling this week is the second in the “mass tort” case filed in 2014, relying on the U.S. Constitution’s 5th Amendment. In Phase One of the lengthy trial, the federal court of claims judge found the Army Corps of Engineers liable for flooding in 2007, 2008, 2010, 2013, and 2014, though some of the liability issues were included in this week’s latest ruling.
“All of the liability issues went our way, so we are pleased,” said lead attorney Dan Boulware of the Polsinelli law firm, which represented the more than 400 landowners, farmers, and businesses along the Missouri River in six states.
The lawsuit alleges the government changed river management in 2004 to protect endangered species of birds and fish, rather than provide flood control. Flood control, the lawsuit claims, invited farmers and others to settle on the fertile land, relying on the river to stay within its banks.
Judge Firestone found for the 44 representative plaintiffs, including Ideker farms of northwest Missouri. In her latest decision, she’s now ruled the government owes the landowners for a “flowage easement.”
Boulware estimates that for three “bellwether” plaintiffs, that amounts to about $10 million each, meaning the ultimate payout could be hundreds of millions of dollars. The actual amounts would be determined by each claim, since this is not a class action lawsuit.
The judge did deny claims for damage to crops, homes, and outbuildings, which Boulware believes is contrary to the law. A decision on whether to appeal that part of the ruling is being considered. Meantime the government, Boulware says, is also planning an appeal, meaning actually payments to cover damages will be delayed further.
A bi-partisan coalition of US Senators from four states, including Kansas and Missouri, urged the Secretary of the Army to settle the case with the landowners in a letter signed last month.
Boulware agrees that would be the right thing to do.
“It’s time for the government to do what they should have done a long time ago,” he says, adding two attempts to settle the case have gone nowhere.
Boulware says the judge agrees the flooding will continue under the current system of managing the river’s flow. But future flooding is not covered under the current case.
The Justice Department and Army Corps of Engineers have so far, not commented on the court’s rulings.
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