Plaintiffs along the Missouri River brought this lawsuit against the United State government for an unconstitutional taking in violation of the Fifth Amendment. The plaintiffs claimed that the changes the U.S. Army Corps of Engineers made under the Missouri River Recovery Program (MRRP) to comply with the Endangered Species Act (ESA) resulted in a flowage easement. Through the plaintiffs’ testimonies, the court determined the Corps' alterations to the Missouri River was the cause of the flooding. Additionally, because these changes and the MRRP program are still in place, the intermittent flooding will continue.
The court next determined whether the flooding amounted to a taking of a flowage easement. The court examined several factors identified in Arkansas Game & Fish Commission v. United States, including the severity of the action, the duration of the harm, the foreseeability of the harm, the character of the land, and reasonable investment-backed expectations. (See 568 U.S. 23, 38-39). The government claimed that even though the flooding the plaintiffs’ land experienced was severe, the government’s contribution to the flooding was relatively small and did not meet the level required for this factor. The court disagreed, finding that the testimonies of the plaintiffs and an expert witness demonstrated that not only did the Corps' actions cause the flooding, but caused more severe flooding than the properties had previously experienced. The flooding caused by the MRRP caused the plaintiffs to lose crops and impacted their farming operation. The duration of the intermittent flooding was not temporary, but instead permanent, and would continue into the foreseeable future. The court found the duration factor to weigh in the plaintiffs’ favor. Additionally, flooding was a foreseeable consequence of the Corps’ actions under the MRRP. These actions included changing the hydraulics of the Missouri River or making it shallower or slower which foreseeably could cause the harm the plaintiffs experienced. Additionally, despite the testimony from an environmental historian on behalf of the government stating that flooding occurred on land next to the Missouri River since 1867, the court found the MRRP changed the character of the land due to the increase and severity of flooding. Lastly, the court considered whether the plaintiff’s had “investment-backed expectations regarding the land's use.” This analysis includes determining whether the expectations were reasonable and if the government interfered with those expectations. The plaintiffs’ owned the property and used it as farmland investing a substantial amount of money every year in crop production. The plaintiffs invested in their farmland under the assumption the flood patterns pre-MRRP would continue. The plaintiffs’ expectation that their farmland would not experience increased flooding was reasonable because the Corps’ change in prioritizing habitat protection under the ESA over the historical priority of flood protection was unexpected. Additionally, government publications showed that the United States expected constituents along the Missouri River to be protected after the extensive work was completed to make the land in that area flood-free. The government interfered with these expectations by altering the Missouri River and causing crop loss for the plaintiffs. Therefore, a taking of a flowage easement had occurred.
Because a taking had occurred, the plaintiffs were entitled to just compensation. The court found the plaintiffs were entitled to compensation for diminution in value of their property, but were not entitled to compensation for crop losses and lost profits based on reduced yields, damage to structures, damages to equipment, flood prevention expenses, and flood reclamation expenses because those are indirect consequential damages.
Idekar Farms, Inc., v. United States, 2020 WL 7334407 (Fed. Cl. 2020).