Judge rules government on the hook for some Missouri River flood damage

Posted at 7:05 PM, Mar 14, 2018
and last updated 2018-03-14 20:05:27-04

BUCHANAN COUNTY, Mo. — A landmark ruling by a federal judge Tuesday holds the U.S. Army Corps of Engineers responsible for some of the flooding along the Missouri River beginning in 2007. That means the federal government will have to compensate the farmers and landowners who filed suit.

One of them is Lanny Frakes, who has been farming the same land in Buchanan County for his entire life. 

"We know that farming is not a guarantee," Frakes said of the lessons learned in that time.

But around 2006, he noticed the flooding he had always expected became much more severe. In the past 12 years, he's lost not only crops, but also 100 acres of farmable land from sand deposits.

"It will probably never be farmed again in my lifetime because it would be financially too big of a burden to remove the sand," which is 5-7 feet deep in some places, according to Frakes.

A team of attorneys from Polsinelli found Frakes wasn't alone. They represented nearly 400 landowners and farmers from Missouri, Kansas, Nebraska and Iowa in a case against the U.S. Army Corps of Engineers. Together the plaintiffs claimed damage of $300 million from floods.

Their argument rested on changes the Corps of Engineers made to the waterway through the Missouri River Recovery Program. The program was implemented in 2004 after consultation with the U.S. Fish and Wildlife Service, required by the Endangered Species Act, and designed to restore the natural ecosystem along the river. To do that, the Corps changed reservoirs, dams and other structures along the river.

At the same time, the Corps updated its 1979 Master Manual. Previously, the document listed flood control as its first priority and fish and wildlife as a last priority. After 2004 the ranking of priorities was removed.

All of these changes, the plaintiffs argued, increased the severity of floods. They claimed the damage from recurrent flooding constitutes the taking of property without just compensation.

"What our clients wanted most of all was a recognition by the Corps that in fact the Corps had fundamentally changed the way it managed the river and it had consequences for our clients," Eddie Smith, a Polsinelli shareholder and attorney, said.

U.S. Court of Federal Claims Judge Nancy Firestone ruled the Army Corps of Engineers bears responsibility for floods in 2007, 2008, 2010, 2013, 2014 and since.

Notably left out? The horrific floods of 2011, when Frakes and others had their worst damage. In her opinion, Firestone found the plaintiffs didn't fully establish causation.

However, the Polsinelli team isn't throwing in the towel on that point.

"Let this be said. The 2011 claims are not done," Smith said.

We won't learn how much Frakes and other landowners will receive until they return to court for that portion of the trial in October. 

In the meantime, Frakes is calling for the Army Corps of Engineers to reverse some of the changes made to the river.

"My opinion is that this is a great ruling. It's a victory that it's recognized there's a problem and we need to go back to flood control, but this is an ongoing problem. If no changes are made, this will just continue," he said.

41 Action News also reached out to the U.S. Army Corps of Engineers for its reaction to the ruling. 

"We are evaluating the court's ruling and considering next steps in coordination with the Department of Justice," spokesman Gene Pawlik wrote in an email.