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Loophole allows landowners to sue Corps of Engineers over Missouri River flood losses

Updated: 2013-03-05T02:53:33Z

By Marshall White

St. Joseph News-Press

— A local law firm found a new loophole and is preparing a lawsuit to seek damages arising from the 2011 Missouri River flood.

“For 85 years, the lower federal courts thought flood waters come and go and that therefore there was no permanent damage,” said Ed Murphy, a partner in Murphy, Taylor, Siemens and Elliott. “This flood exception meant property owners were simply out of luck.”

Then in December something unusual happened at the U.S. Supreme Court.

The case involved the Arkansas Game & Fish Commission, which sued over the U.S. Army Corps of Engineers management practices that impacted forested lands it owned. The case was appealed to the Supreme Court and a decision came down in December.

Justice Ruth Bader Ginsburg said temporary flooding by the government is “not categorically exempt” from liability under the 5th Amendment. There is “no solid grounding in precedent for setting flooding apart from all other government intrusions on property,” the justice wrote.

The decision seems to say that under the 5th Amendment the government must pay property owners when it takes their land for public purposes. The decision by Justice Ginsburg was handed down as a unanimous 8-0 decision. Justice Elena Kagan didn't participate.

“It's definitely encouraging that the court spoke with one voice,” Murphy said.

A St. Joseph man serving on a federal study group for the corps is elated.

“It's a huge crack in that bubble they call the Corps of Engineers,” said Ken Reeder. “I've already contacted the firm and determined that I'm eligible to participate.”

Reeder says he's getting the word out to fellow landowners hurt in the 2011 flood.

The lawsuit should be a great attention getter.

“I don't know what else people can do to get their (the Corps of Engineers) attention,” said Make Sitherwood, presiding Holt County commissioner.

The law firm has already been in Oregon, Mo., to file a Sunshine Law request for some of the mass of data collected by the county, Sitherwood said. The county still is cooking around the idea of a lawsuit and had the attorneys come talk, he said. The corps been good in restoring the levees but what happened could have been avoided, the commissioner said.

Since the 2011 flood many people have had questions about what can be done, Murphy said.

The firm's class-action lawsuit will be filed representing landowners whose property was destroyed during the 2011 flood.

The law firm believes that there are three classes, farmers, individuals and governmental entities, said Nancy Potter, a lawyer with the firm.

She said the law firm has met with potential clients in Atchison, Kan., Blair, Neb. and Hamburg, Iowa, as well as the Missouri cities of Rock Port, Oregon, Rushville, Weston and Columbia.

Murphy spoke Saturday to the Missouri Levee and Drainage District Association.

“I applaud his effort to see what can be done,” said Tom Waters, president of the association.

A farmer and association member agreed. “It's a big deal,” said Ron Blakely, a farmer in the Hall's Levee District.

The law firm has a contract that says it will get no money unless it wins monetary damages as a result of the lawsuit.

© 2013 St. Joseph News-Press, Distributed by MCT Information Services.

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