Class action suit filed over flood

By Jessica M. Karmasek | May 3, 2011


WASHINGTON (Legal Newsline) - A class-action complaint was filed Tuesday on behalf of the farmers whose land was flooded after the U.S. Army Corps of Engineers breached a levee on the Mississippi River.

The Birds Point explosion, which was done Monday night in an attempt to protect the small town of Cairo, Ill., reportedly sent water onto 130,000 acres of Missouri farmland.

The complaint was filed less than 24 hours after the levee's detonation, in the U.S. Court of Federal Claims against the Corps. It contends that the property rights of the farmers and landowners under the Fifth Amendment of the U.S. Constitution were violated when a 15 foot high wall of water was released and flooded their property.

"In the process of breaching the levee, the U.S. Army Corps of Engineers also destroyed or is in the process of destroying 90 households and more than 100,000 acres of the country's richest farmland," attorney J. Michael Ponder of Cook, Barkett, Ponder & Wolz in Cape Girardeau, Mo., said in a statement Tuesday.

"This occurred despite the fact that the Corps lacked the easement over the affected property in the floodway. What these property owners and farmers are seeking is just compensation for the land and livelihood they have lost -- possibly forever or for decades."

The complaint specifically charges that the action violated the so-called "takings clause" of the Fifth Amendment, which bars the government from taking private property without due process of law.

The complaint also asserts that the Corps did not have easements over property in the floodway that are required before the Corps could be allowed to breach the levee.

As a result, property owners are due compensation for the illegal taking of their property and violation of their constitutional rights, their attorneys argue.

"The river was allowed to scour away large sections of land, which will leave huge holes, silt and deposits of sand and gravel on formerly productive cropland," co-counsel Benjamin D. Brown of the Washington D.C. law firm of Cohen, Milstein, Sellers & Toll said in a statement.

"This land may never recover from this destruction," he said.

At the time the levee was breached, attorneys for the farmers say acreage in the affected area was selling for between $4,000 and $6,000 an acre. Corn prices were about $6.75 a bushel and the land was producing about 200 bushels an acre. Wheat was selling for between $8 and $9 a bushel and the land was producing about 75 bushels an acre. Soybeans were selling for between $12 and $14 a bushel and the land was producing about 70 to 75 bushels an acre, they said.

The Corps' own estimates place damage to the property at Birds Point at more than $300 million. The farmers' attorneys say they haven't yet determined whether they'll accept that estimate.

The complaint names 14 farming operations and their owners as plaintiffs but seeks certification as a class action on behalf of all individuals and entities affected by the government's intentional flooding of their property.

The complaint was filed in the U.S. Court of Federal Claims because lawsuits for damages against the Corps must be filed in a federal claims court, the farmers' attorneys explained.

The other plaintiffs attorneys are Phillip J. Barkett Jr. and Kathleen A. Wolz of the law firm of Cook, Barkett, Ponder & Wolz in Cape Girardeau, Mo.

Missouri Attorney General Chris Koster tried to prevent the detonation, while Illinois Attorney General Lisa Madigan supported it.

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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