Farmers May See Floods Ruling in Fall

OMAHA (DTN) -- A trial to determine whether some Missouri River basin farmers will be compensated by the federal government for repeated flooding in the past decade is in the second week of an expected three-week run before the U.S. Court of Federal Claims.

The case, Ideker Farms v the United States continued on Monday, focused on the possible hundreds of millions of dollars in damages 14 basin farms may receive.

R. Dan Boulware, the lead attorney for Ideker Farms, told DTN the trial is being held virtually.

"Post-trial briefing will follow, then closing arguments, and then a ruling probably still weeks, not months later; but hopefully this fall," he said.

The lead plaintiff, Roger Ideker, of St. Joseph, Missouri, and others sued the U.S. government for $250 million in the U.S. Court of Federal Claims in 2014. They claimed they were due compensation for land unlawfully taken in the flood.

Ideker and hundreds of other basin farmers have been working to return large chunks of land buried in sand back to production while holding out for a successful court case.

According to court documents, attorneys are expected to call 16 witnesses and to introduce a 196-page list of exhibits.

Judge Nancy B. Firestone ruled last year that in five of the six years in question dating back to 2007, the U.S. Corps of Engineers violated the Takings Clause in the Fifth Amendment of the U.S. Constitution by not compensating farmers for flood-damaged land. She disallowed flood claims from 2011.

Earlier this year, Firestone ruled the federal government would be allowed to present new evidence to show the Corps of Engineers has implemented measures to reduce flood risks that occurred after 2014.

Firestone ruled last year the Corps deprioritized flood control in 2004. That year, the Corps instituted the Missouri River Recovery Program to accelerate changes to the river to enhance wildlife habitats.

Phase one of the case concluded in May 2019. Phase two, occurring now, is to determine individual farmer losses and compensation, expected to total near $300 million.

The case started with 44 bellwether tracts of land. The judge ruled that 14 property owners proved cause and severity, and advanced to the second-phase trial.

In her 259-page opinion in 2019, Firestone said evidence establishes the Corps' changes to the river "had the effect of raising the Missouri River's water surface elevations in periods of high flows."

The court found that since 2007, flooding has been among the worst in the history of the river, and the Corps' changes in management either caused or contributed to the flooding.

Firestone said in the ruling, "recurrent flooding in the Missouri River basin will continue into the future," and farmland will continue to see blocked drainage because of expected higher river levels.

In the summer of 2016, the U.S. Government Accountability Office issued a report saying the Corps is falling short on the system in place to update water-control manuals. Corps regulations state water-control manuals should be reviewed at least every 10 years.

Comparable lawsuits in recent years have appeared to have been successful, according to DTN research. The U.S. Supreme Court in 2012 issued a ruling in an Arkansas Game and Fish Commission case that temporary flooding can constitute a taking. The same federal claims court where Boulware is arguing his case issued a similar decision on a lawsuit involving Hurricane Katrina in New Orleans in 2015.

Todd Neeley can be reached at todd.neeley@dtn.com

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