Many lawsuits have been filed in the U.S. Court of Federal Claims alleging that the U.S. Army Corps of Engineers’ (Corps) management of the Missouri River flood control system has resulted in the serious flooding of many properties located in several states that are located adjacent to the river, and that this amounts to an unconstitutional “taking” of their property in violation of the U.S. Constitution. On March 13, 2018, a very long opinion (more than 250 pages) was released following extensive hearings which holds that these claims have merit, and now the court will decide whether the plaintiffs may be entitled to an appropriate amount of compensation. The case is Ideker Farms, Inc., et al,., v. The United States, based on the evidence submitted regarding 44 plaintiffs selected as representative or “Bellwether” plaintiffs.

The litigation is proceeding in two phases. The first phase, just completed, focused on the liability, if any, of the United States for the Corps’ management of the Missouri River flooding issues over many years. The second phase will determine whether the United States has any defenses to these claims, and will also decide on the appropriate amounts of compensation to be awarded because of the damages resulting from the floods of 2007, 2009, 2010, 2013, and 2014.

As the court notes, the Missouri River has historically been characterized as being both wide and shallow and prone to flooding across its unconstrained flood plain, where the river banks have been eroded and many tons of sediment deposited. However, beginning in the early 1900’s, Congress enacted several laws to restrain and control this flooding by placing flood control on an equal footing with the regulated navigation of the river. A series of dams and reservoirs were been constructed, banks have been stabilized, and erosion controlled.

The “Mainstem Reservoir System” became fully operational in 1967, which includes the largest reservoir system in the United States. The day-to-day operation of this system is based on the Corps’ “Master Manual” which contains the Corps interpretation of its statutory responsibilities and operating approaches. Initially, the emphasis was on flood control, but gradually fish and wildlife protection attained a greater priority in the wake of the enactment of the Endangered Species Act (ESA) and a series of Water Resources Development acts. It is alleged that because of this change in emphasis, the plaintiffs’ properties were exposed to greater dangers of flooding, with disastrous consequences.

Massive amounts of evidence was received and considered by the court, based on the testimony of property owners, government officials and a raft of expert witnesses on both sides of the issue. The court stated that in Phase 1, it had to determine if there were justiciable takings claims based on its evaluation of these factors:

(1) Causation—whether the many actions taken by the Corps over the years have transformed the Missouri River from a highly engineered river to its more natural state consistent with the goals of the ESA, and this has resulted in increased and more serious flooding incidents—the court agreed that this has been established;

(2) Foreseeability—whether the “invasion” of the plaintiffs’ property by Missouri River flooding was foreseeable and predictable as a result of the Corps management systems and changes in the Missouri River—the court believes the plaintiffs can also satisfy this standard; and

(3) Severity—the plaintiffs must also prove that their injuries were so severe that it interfered with their reasonable expectations as to the use of their property—the court found that, at this stage, the “plaintiffs who are able to prove an invasion by government flooding that interfered with that plaintiff’s use and enjoyment of the property for some period of time (which can be established by combining the impacts of flood events over multiple years) will be allowed to proceed to the next phase of the litigation.”

The court ultimately identified three categories of plaintiffs for phase II, i.e., those that have established causation, foreseeability and severity, those that have established causation and foreseeability but have not yet established severity, and those that have failed to establish causation and therefore their claims are subject to dismissal.