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Flooding Class Action Can Move Forward, Judge Decides

— January 20, 2021

Judge decides scope of flooding lawsuit, asks for claims to be submitted.

Judge Nancy Firestone of the U.S. Court of Federal Claims, first nominated by former U.S. president Bill Clinton and re-nominated by President Barack Obama, ruled in mid-December 2020, after the U.S. Army Corps of Engineers revised its management of the Missouri River Basin to comply with environmental laws, the agency violated the Fifth Amendment rights of three landowners.  Now, the government must pay these individuals for flooding their property in order to protect endangered species.

The judge wrote in her decision, “The government encouraged development along the river, and the property owners were given reasonable assurances that their land would be protected from flooding.”  She has been overseeing a total of 400 tort claims along the river since 2014, with the three plaintiffs serving as bellwether claimants.

The attorneys representing the plaintiffs, Dan Boulware of Polsinelli and Benjamin Brown of Cohen Milstein Sellers & Toll, had held off on filing new claims until Judge Firestone clarified the direction the case would take.  The judge’s ruling effectively set a claims deadline of December 31, with which they complied.  Moving forward, they plan to pursue a Fifth Amendment class action in the Court of Federal Claims with more than 60 plaintiffs who own land in multiple states along the river.

Flooding Class Action Can Move Forward, Judge Decides
Photo by Al Nik on Unsplash

“This is a big deal,” said Anthony Schutz, an associate professor at the University of Nebraska College of Law. “The potential liability could be in the hundreds of millions of dollars depending upon how many people are included. This throws a wrench into the adaptability of management of the (river) to changing needs.”

Boulware said he expects the government to appeal, adding, they have “always been willing to work out a reasonable settlement with the government, but without success.  The government needs to step up and do what’s right…If the class is certified, hundreds of other class members will also have an opportunity to assert claims.  Those claims should be worth at least $2,000 per acre, based on the judge’s assessment of reports from plaintiffs’ experts in the mass action.”

Brown added they suspect the three bellwether plaintiffs will receive at least $10,000 each.

Senators from Nebraska, Iowa, Missouri and Kansas would like to see the flooding litigation settled as quickly as possible, and they wrote a letter to the secretary of the Army stating, “The corps continues to ignore clear liability for its actions and instead expresses its intent to exhaust all appeals for years to come.  We once again strongly urge that the corps cease further delay and make our constituents whole…It is unacceptable that some of our constituents have waited over 13 years to be compensated.”

Boulware said the Department of Justice has long defended the actions taken by the government, saying that they were in the best interest of the law, and he suspects that the agency will continue to do so for the foreseeable future.


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