Judge dismisses most of farmers' lawsuit over Birds Point levee - KMOV.com

Judge dismisses most of farmers' lawsuit over Birds Point levee

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By KMOV Web Producer By KMOV Web Producer

CAPE GIRARDEAU, Mo. (AP) -- A federal judge has dismissed a large portion of a class-action lawsuit brought by more than 140 southeast Missouri farmers whose land was damaged when Birds Point levee was intentionally breached last year.

On Friday, Judge Nancy B. Firestone of the U.S. Court of Federal Claims in Washington granted the government's motion to dismiss the first two counts of the lawsuit, in which the farmers are seeking millions of dollars from the U.S. government.

The parts Firestone dismissed involve a "takings claim," which would require the plaintiffs to show that there would be frequent, inevitable flooding in the future because of the U.S. Army Corps of Engineers decision to destroy the levee in order to protect homes upriver.

The Southeast Missourian (http://bit.ly/KyjR1n) reported that the May 2, 2011, breach was only the second time the Corps has activated the 130,000-acre floodway that sits in Mississippi and New Madrid counties.

"The first flood took place in 1937. Allegations of two floods separated by nearly 75 years are not enough to support an inference of frequent and inevitably recurring flooding," Firestone said in her written opinion.

Cape Girardeau lawyer J. Michael Ponder, who is representing the plaintiffs, said despite Firestone's ruling, he thinks his clients eventually will get the reparations they seek.

"The farmers are not giving up by a long shot," Ponder said. "There's no reason for despair here. This is just a trimming of the claim."

He said the judge has yet to consider an amended complaint filed April 23, which seeks compensation for the government's failure to pay the plaintiffs for damage caused by sand and gravel deposits, in violation of their easements.

Ponder said the motion, which is a "breach of contract claim," could get the farmers as much as a takings claim. He said the damage caused by activating the floodway was more severe than what was allowed under flowage agreements paid to the property owners.

"In truth, the landowner probably doesn't care whether his damages get paid under count 1, which is the takings count, or count 2, which is a breach of easements count," Ponder said. "Just so long as the damages are paid."

Still, Ponder said he intends to appeal Firestone's decision. He also hopes the law on government taking will soon be redefined by the U.S. Supreme Court in a case brought by the Arkansas Game and Fish Commission against the Corps of Engineers.

The court agreed in April to hear that case, in which the commission has been trying for seven years to get the government to pay for damage it said the corps caused to its Dave Donaldson Black River Wildlife Management Area.

The Court of Federal Claims had awarded $5.78 million to the Arkansas commission, finding that the corps destroyed and degraded more than 18 million board feet of timber by deviating from a water-control plan. But a higher court reversed the trial judgment.


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