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Was Corps management on the Missouri River a “taking”?

Updated: Jul 12, 2020

Recently, in a 259-page decision, US Court of Federal Claims Judge Nancy Firestone held that river management changes begun by the Army Corps of Engineers in 2004, including efforts to aid endangered fish and birds, led to damages estimated at more than $300 million in Missouri, Kansas, Nebraska and Iowa. Judge Firestone wrote that flooding in the four-state area “was caused by and was the foreseeable result” of the Corps’ management of the river.

According to the Associated Press, another trial starts in October to determine compensation for the nearly 400 plaintiffs.

We asked 2 of our attorneys, Les Edelman and Newt Klements, to offer brief perspectives on Judge Firestone’s decision:

Les Edelman

Although Judge Firestone is a Senior Judge of the Federal court that deals with monetary claims against federal agencies and an experienced former Department of Justice attorney representing agencies such as the Corps of Engineers, I am hesitant to join in the chorus that this finding represents a  “blockbuster decision” for those involved in water resources management, environmental restoration and property owners. There are many, many steps involved before this decision becomes final, including the near certainty of a lengthy appeals process. This process will necessarily involve attention to Executive Branch policies, Congressional involvement and Court decisions that have triggered the Corps management actions.

Second, the next phase of this trial may be even more important than the first because it will focus on the Government’s defenses to Plaintiff claims and other factual issues associated with proving entitlement to compensation.

Clearly, this is a case worth following.

Newt Klements

This is not meant to be full analysis of Judge Firestone’s decision but rather an overview. With respect to the question as to whether there was a “taking” in this case, the Supreme Court in its unanimous Arkansas Fish & Game decision (2012) established criteria when determining whether a government “taking” has occurred. The Court’s opinion stated that a takings analysis must consider “the duration of the interference, whether the invasion was foreseeable when the government acted, the severity of the interference, and the degree to which it upsets the property owner’s reasonable expectations regarding the land’s use.”

Application of these criteria in this case is likely to be the subject of appeal of the “entitlement/liability” aspect of this case.  For example, based upon the factual history of these Corps projects, there seems to be an open question about whether flooding could have resulted from the original purpose and design of these projects. If so, reliance on an added environmental purpose may not be a good foundation for a court to find a taking.

Any monetary damages due the plaintiffs are a separate element of litigation in the Court of Federal Claims. In regard to such, if “entitlement/liability” as discussed above is sustained, each plaintiff will have to prove individual damages. This burden will be fact-dependent and is often difficult to document and substantiate.  Also, any judicial determination in this regard is also subject to appeal.

The bottom line is that this case is far from being finally decided.


The views expressed here are those of the author and do not necessarily reflect the views of Dawson & Associates.


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