KANSAS CITY, Mo. | Local landowners along the Missouri River who had joined in a lawsuit against the U.S. Army Corps of Engineers will not collect damages sustained in the historic 2011 flood.
A federal judge on Tuesday ruled that 2011 flooding occurred because runoff exceeded the amount of storage in the river's six reservoirs, not because of changes the corps had made in how it managed river flows. The ruling leaves claims made by Siouxland landowners subject to dismissal.
Senior Judge Nancy Firestone did rule that the corps' practices that added an emphasis on wildlife habitat protection and restoration rather than flood control were responsible for damages to thousands of acres south of Sioux City caused by five flooding events since 2007. Those landowners could receive government compensation for damage estimated to exceed $300 million.
Paul Dailey, of rural Jefferson, South Dakota, said he was happy that those landowners might see monetary relief, but disappointed that Firestone ruled that landowners had failed to prove that corps practices caused the 2011 flooding.
"I'm not happy with the ruling," said Dailey, who saw approximately 1,200 acres of his crop and pasture land four miles upriver from Dakota Dunes sit under water for more than three months in the summer of 2011, forcing him to sell his 130-head cattle herd.
Attorneys for the landowners hailed the overall ruling that backed their claims that the corps had deprioritized flood control in 2004 and was essentially taking farmland along the river to establish wildlife habitat and not paying the landowners for it, a violation of the U.S. Constitution's Fifth Amendment.
"Although we do not concur with the Court's conclusions regarding the 2011 flood event, we are very pleased with the Court's conclusions regarding the corps' changes to the river causing flooding, and we are certainly pleased with an outcome that will provide substantial compensation to plaintiffs living along the river who have suffered significant flood damage and losses throughout the past decade," the landowners' lead attorney, Dan Boulware, of the Kansas City-based Polsinelli Law firm, said in a news release.
Boulware told the Journal in a phone interview that he planned to file a motion asking Firestone to reconsider her ruling pertaining to the 2011 flood.
"We believe she is absolutely wrong," he said.
The case will now move into a second phase, in which Firestone will decide the extent of landowner losses and determine compensation. Arguments are scheduled to begin in October, Boulware said.
Filed in March 2014 in the U.S. Court of Federal Claims in Washington, D.C., the lawsuit challenged the corps' management practices along the river, claiming that it could have foreseen that changes in how river flows were managed would lead to flooding. The list of plaintiffs grew to 372, and 44 of them -- six from Siouxland, including Dailey, the Omaha Tribe of Nebraska and other farm owners -- were selected as representative plaintiffs. They were among the more than 90 witnesses who testified during the 63-day trial that ran from March until July in Kansas City and Washington, D.C. Closing arguments were heard in November.
In her 259-page ruling, Firestone said higher water surface elevations caused by the corps' system changes led to flooding and that "was a foreseeable consequence of the corps' actions."
Those actions have resulted in a changed river, she said, and recurring flooding along the river will continue into the future.
A corps spokesman referred questions to the U.S. Justice Department. Wyn Hornbuckle, a Justice Department public affairs officer, said the department is reviewing the ruling and he had no further comment.
In the midst of calving season, Dailey said he has rebuilt his cattle herd to 65 head. Though he suffered a "substantial" monetary loss as a result of the 2011 flood, he said he didn't join the lawsuit for a potential pay day. He hopes it will ultimately lead to changes in how the corps manages the river.
"It wasn't a monetary deal," Dailey said. "My thing is they need to put flood control back at number one on the corps' list of priorities."