2014

Farmers Sue Army Corps of Engineers After Land Destroyed By Levee Explosion

Complaint charges action violated 5th Amendment "takings clause" causing untold damages

WASHINGTON, May 3, 2011 /PRNewswire-USNewswire/ -- Attorneys today filed a class action complaint on behalf of farmers whose land was flooded when the U.S. Army Corps of Engineers exploded a levee on the Mississippi River, sending a torrent of water onto 130,000 acres of prime Missouri farmland.

The complaint filed in the United States Court of Federal Claims against the U.S. Army Corps of Engineers contends that the property rights of the farmers and landowners under the 5th Amendment to the Constitution were violated when a 15 foot high wall of water was released and flooded their property. The government exploded the Birds Point levee Monday night in an attempt to protect the small southern Illinois town of Cairo from rising flood waters.

"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," said attorney J. Michael Ponder of Cook, Barkett, Ponder & Wolz in Cape Girardeau, Missouri. "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 charges that the action violated the "takings clause" of the 5th Amendment which bars the government from taking private property without due process of law. The complaint 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 at Birds Point. As a result, property owners are due compensation for the illegal taking of their property and violation of their constitutional rights.

Large tracts of land in Mississippi and New Madrid Counties in Missouri were inundated with water flowing at a rate of 550 feet per second, utterly destroying everything in its wake, including acres of farmland for corn, wheat and soybeans, said co-counsel Benjamin D. Brown of the Washington, D.C., law firm of Cohen, Milstein, Sellers & Toll. "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," he said. "This land may never recover from this destruction."

At the time the levee was breached, 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.

The Corps of Engineers' own estimates place damage to the property at Birds Point at more than $300 million. The plaintiffs have not yet determined whether they will accept that estimate, attorneys said.

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 in Washington, D.C., because lawsuits for damages against the U.S. Army Corps of Engineers must be filed in a federal claims court.

Attorneys representing the plaintiffs are J. Michael Ponder, Phillip J. Barkett, Jr., and Kathleen A. Wolz of the law firm of Cook, Barkett, Ponder & Wolz in Cape Girardeau, Missouri. Co-counsel is Benjamin D. Brown of the Washington, D.C., law firm of Cohen, Milstein, Sellers & Toll.

Editor's Note: For copy of complaint, contact Pam Avery at pam@turnerstrategies.

SOURCE Cohen Milstein Sellers & Toll PLLC



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