An attorney argued in federal court Tuesday that the worst 2011 Missouri River flood damage could have been avoided if the federal government hadn’t eliminated flood control as a priority.
St. Joseph attorney R. Dan Boulware spoke during the closing arguments of a lengthy civil trial filed in 2014, between Missouri River landowners in six states and the federal government. He also said some scientific experts believe the Army Corp of Engineers had the ability to completely avoid the 2011 flood if flood control had still been the No. 1 priority.
Boulware, of the Polsinelli law firm, is representing 372 landowners suing the government in federal court. Their lawsuit alleges changes in government river management since 2006 have resulted in the illegal taking of land, in violation of the U.S. Constitution.
Changes to the Corps’ master manual eliminated protection from flooding as its priority, thereby illegally depriving property owners of the enjoyment and use of their land, said Edwin Smith, a former Missouri Court of Appeals judge and now a lawyer with Polsinelli. Smith began the closing arguments Monday talking about issues of severity and duration. He finished Tuesday morning.
Throughout the last half 20th century, the government pursued a policy through the U.S. Army Corps of Engineers for channelizing the Missouri River, reclaiming land, reducing flooding and encouraging farming and settlements all along the floodplain, Boulware told federal Senior Judge Nancy Firestone.
Since 2006, the Corps has eliminated flood control in favor of restoring the river and protecting endangered species, Boulware reminded Firestone.
The Corps shouldn’t be blamed for flooding, said Terry Petrie, a Justice Department attorney. It balances flood control and other potential uses of the river, including barge traffic, hydropower, recreation and providing habitat for fish and wildlife, Petrie said. Tuesday, the government attorney cited federal case law he suggested supported the Corps’ work. Petrie maintained the landowners hadn’t proved the severity of the flooding was caused by the Corps’ actions.
Smith wasn’t buying Petrie’s arguments and told Firestone, “I totally disagree and the courts should absolutely reject the argument ... Even minimal intrusions constitute a physical invasion requiring compensation.”
The lawyers agreed early on to focus on the floods of 2007, 2008, 2010, 2011, 2012 and 2014.
Firestone heard 55 days of evidence in Kansas City and Washington D.C. earlier this year.
Tuesday, Boulware reviewed what Polsinelli believes the evidence presented in court shows. In the afternoon, he focused on issues like the push to restore shallow water habitat with the building of about 63 chutes south of Sioux City, which has exacerbated flooding and destroyed family farms. Boulware showed how this push for shallow water habitat is putting thousands of tons of sediment in the Missouri River and directly exacerbating flooding.
Boulware also accused the Corps of violating its own procedures when it picked what it called an “independent” board to review the 2011 flood, rewrote some conclusions and eliminated others showing the Corp in a bad light.
Firestone is expected to wrap this portion of the trial up by Friday. She told attorneys it is her plan to have a published decision by the end of January.
The Corp maintains it doesn’t comment on cases being tried.