High Water in the Nation’s Breadbasket—A Takings Analysis of the Government’s Response to the Mississippi River’s Great Flood of 2011

Volume 26 No. 1

By

Brian Lee is a second-year law student at Southern Illinois University School of Law, where Alice Noble-Allgire is a professor of law. Alice Noble-Allgire is an associate articles editor, real property, for Probate & Property.

The activation of the Birds Point–New Madrid Floodway by the U.S. Army Corps. of Engineers resulted in lawsuits that will force courts to take a new look at floodway takings and related issues previously considered many years ago by the courts.

Spring 2011 brought a flood of epic proportions to the nation’s heartland and a gut-wrenching decision for Major General Michael J. Walsh of the U.S. Army Corps of Engineers. Melt-off from heavy winter snows joined torrential spring rains in the upper Mississippi River, creating a record flood that put the entire river levee system under unprecedented stress. Walsh had the unenviable task of deciding whether to breach part of the levee to divert some of the floodwaters onto fertile farmland and several hundred homes in southeast Missouri.

Walsh, who commands the Corps’ Mississippi Valley Division and serves as president of the Mississippi River Commission, ultimately decided to breach the levee, activating a federal flood control project known as the Birds Point–New Madrid Floodway for only the second time in its 83-year history. He gave the go-ahead on May 2, 2011, after the federal courts denied the state of Missouri’s spirited request for an injunction. Missouri v. U.S. Army Corps of Engineers, No. 1:11CV00067 SNLJ, 2011 WL 1630339 (E.D. Mo. Apr. 29, 2011). As explosives lit up the night sky on the river’s west bank, floodwaters surged over the levee and spread out over roughly 130,000 acres of private and public property within the floodway.

Less than 24 hours later, property owners filed a class action in the U.S. Court of Federal Claims. Big Oak Farms, Inc. v. United States, No. 1:11-CV-00275-NBF (Fed. Cl. May 3, 2011). The suit alleges that activation of the floodway constituted a taking of private property, requiring compensation under the Takings Clause of the U.S. Constitution. Alternatively, to the extent that the government holds flowage easements over some of the property, the suit seeks damages for exceeding the scope of those easements and, in some cases, specific performance of provisions within the easements requiring compensation to landowners for sand and gravel deposits left behind by the floodwaters.

This article looks at the takings issues that have arisen in past lawsuits regarding the Birds Point–New Madrid Floodway, as well as the issues raised in the pending action. To provide context for this analysis, however, the article begins with some background about the floodway’s history and design.

The Birds Point–New Madrid Floodway

The Birds Point–New Madrid Floodway is one of several flood control projects created under the Flood Control Act of 1928, 45 Stat. 534. The act was prompted by a catastrophic flood on the Mississippi River in 1927 that claimed 246 lives and caused more than $200 million in property losses. The flood swept away “7,879 houses, 17 gins, 118 stores, 2,997 barns, and 16,971 outbuildings, together with 12,626 horses and mules, 25,716 head of cattle, 133,174 head of hogs, 2,560 sheep and goats, 719,647 poultry, $1,628,711 in merchandise, $1,317,515 worth of farm implements, $3,054,544.50 in feedstuffs, and $4,730,627 in household goods and effects”; it also damaged another 58,844 houses, 2,148 stores, 285 gins, 11,944 barns, and 36,723 outbuildings. 69 Cong. Rec. 6785 (1928) (statement of Congressman Driver).

The floodway consists of a large swath of land in the historic floodplain of the Mississippi River just south of the point where the river converges with the Ohio River. By building a second “setback” levee several miles west of the riverside (frontline) levee, the Corps of Engineers created a wide expanse into which it can divert water during a “project design” flood—that is, “the maximum flood with a reasonable chance of recurring.” Mississippi River Commission Information Paper, The Mississippi River & Tributaries Project: Birds Point–New Madrid Floodway 3, available at www.mvm.usace.army.mil/publicaffairs/News/press_
releases/bpnm/BPNM_paper.pdf (MRC Information Paper).

Between the two levees, the floodway ranges from 3 to 10 miles wide and is 36 miles long, covering an area that included about 90 homes, 200 residents, and farm fields in southeastern Missouri in 2011. Missouri v. U.S. Army Corps of Engineers, at *1. During typical flood events, substantial portions of this property are protected by the frontline levee, which was built or substantially improved under the 1928 Flood Control Act. See Matthews v. United States, 87 Ct. Cl. 662 (1938). About 60%, or 80,000 acres, however, is still subject to backwater flooding, which occurs in part when water backs up through the creeks and streams that drain into the Mississippi River during flood events and in part from a 1,500-foot gap between the frontline levee and the setback levee at the southern end of the floodway. MRC Information Paper, at 8-9. Although the Mississippi River Commission proposed closing this gap in the 1960s, local opposition precluded acquisition of the easements necessary to put the plan into effect. Id. at 10.

The floodway is designed to be activated by “fuse plug” sections of the frontline levee, which are slightly lower than adjoining levee sections. Most of the frontline levee is built to a height of 62.5 feet above the zero point on the river gauge at Cairo, Illinois, where the Mississippi and Ohio rivers converge. The fuse plug sections, however, are built only to 60.5 feet, acting as a “fuse plug” or safety valve for “project design” floods. Id. The original design anticipated that the fuse plug sections of the levee would naturally “crevasse” when the river began to overtop them, eventually causing the levee to breach and allowing the river to flow into the floodway. MRC Information Paper, at 5. Under the current plan, however, the government has the authority to crevasse the levee artificially, using explosives, when the river is at approximately 60 feet. Missouri v. U.S. Army Corps of Engineers, at *2.

Controversy Surrounding the Floodway Plan

The Corps’ proposal to create the floodway was controversial from the outset and remains so today. For obvious reasons, residents within the proposed floodway opposed the plan, preferring the Mississippi River Commission’s alternative proposal to build higher and stronger riverside levees. Based on the catastrophic 1927 flood, which crested at 58 feet at Cairo (“at that time, a lavish and bustling river town with a population exceeding 15,000”), the Commission recommended raising the levee protection to 70.4 feet. MRC Information Paper, at 4. The Corps’ plan proposed maintaining the frontline levee at 58.5 feet but lowering the fuse plug sections to 55 feet. Missouri Congressman Dewey Short summed up his constituents’ opposition to that plan by saying they “do not want to see southeast Missouri made the dumping ground to protect Cairo, much as we love Cairo.” Id. at 5.

Despite this opposition, Congress adopted the Corps’ plan in deference to the expertise of Major General Edgar Jadwin, the Corps’ Chief Engineer at the time. Jadwin favored the floodway proposal because it was less expensive—about $100 million cheaper than the Commission plan—and less dangerous. Id. Yet less than 10 years later, after the Corps activated the floodway for the first time in the Great Flood of 1937 (the only time it was used before 2011), Jadwin’s successor, Major General Edward Markham, expressed reservations about the concept. Testifying before Congress, Markham stated: “I am now of the opinion that no plan is satisfactory which is based upon deliberately turning floodwaters upon the homes and property of people, even though the right to do so may have been paid for in advance.” MRC Information Paper, at 8.

These competing interests were brought to the forefront once again in spring 2011, when Missouri sought an injunction to block the Corps from activating the floodway. Missouri officials argued that the floodwaters would violate the Clean Water Act and cause irreparable harm by polluting the state’s waterways with farm chemicals and other contaminants that are stored or used on property within the floodway. The state also pointed to the devastation the flood would wreak on the residents themselves in two of the poorest counties in the state.

Illinois made equally forceful arguments on behalf of its interests, including the desire to protect Cairo and other small southern Illinois communities at risk from increased pressure on aging levees. With a population of 3,000 residents, about 62% of whom are African American, Cairo is considerably smaller than it was when the 1928 Flood Control Act was enacted. It is also considerably poorer. About one-third of the residents live below the poverty line; many could not evacuate because, as one official observed, they “have no place to go and no way to get there.” Missouri v. U.S. Army Corps of Engineers, No. 11-CV-00067-SNLJ (Affidavit of James Wilson in Memorandum in Support of Illinois’ Unopposed Motion to Intervene).

From the federal government’s perspective, however, it was not simply a choice between Cairo and Missouri farmers; the Corps was worried that the 2011 flood was putting unprecedented pressure on the entire levee system. The Corps presented forecasting models predicting that if the floodway was not activated, multiple levees in Illinois and Kentucky would be overtopped by one to two feet. Missouri v. U.S. Army Corps of Engineers, No. 11-1937 (8th Cir. 2011) (Opposition of Federal Appellees to Injunction Pending Appeal, at 5). The record level of stress also presented a risk that one or more levees would fail, leading to uncontrolled flooding in more densely populated areas. Id.

The Corps offered projections by an expert economist, Dr. Robert D. Learned, that operation of the floodway would prevent damage to 32,600 residences and 2,100 commercial structures in areas outside the floodway. Id. at 19. Dr. Learned estimated that a failure to use the floodway could cost more than $1 billion, as compared with $314 million in damages within the floodway if it were activated. Id. at 6. Missouri officials, however, argued that Dr. Learned’s estimates did not account for the permanent loss of farmland rendered unusable because of scouring from the floodwaters. Id. (Motion for Injunction Pending Appeal, at 3).

Ultimately, the Corps argued that by endorsing the Corps’ plan in the 1928 Flood Control Act, Congress had already balanced these interests and “decided that using the Floodway is in the best interest of the public.” Missouri v. U.S. Army Corps of Engineers, No. 11-1937 (8th Cir. 2011) (Opposition of Federal Appellees to Injunction Pending Appeal, at 21). The Corps noted that the flood control plan, particularly the design of frontline levees, was based on the assumption that the floodway would be activated at the “project design” flood stage. Id. at 18. To effectuate this plan, the government had purchased flowage easements on substantial portions of property in the floodway and, to prepare for the floodway’s activation, had alerted floodway residents to begin an orderly evacuation. By contrast, if the floodway was not activated, it would be more difficult to evacuate people because it would be more difficult to predict where levee breaches and uncontrolled flooding might occur. Id. at 20.

Flood Control vs. Navigation

In ruling on Missouri’s request for an injunction, the federal district court was pressed to consider the purpose of the floodway project or, more specifically, whether it was purely for protection of property behind the levees or if it also served the government’s interest in navigation on the river. This distinction, which was the key to determining whether sovereign immunity blocked Missouri’s claims under the Clean Water Act, is also relevant to the takings analysis, as explained further below.

Missouri claimed that the government had waived immunity under section 313(a) of the Clean Water Act, 33 U.S.C. § 1323(a). The court, however, concluded that the act contained an express provision exempting actions taken under the Corps’ authority to maintain navigation. Missouri v. U.S. Army Corps of Engineers, No. 11-CV-00067-SNLJ, 2011 WL 1630339 at *4–*5. The court also rejected Missouri’s claim that the floodway was being activated for the sole purpose of flood control, rather than navigation. Id. at *5 (citing Corps’ personnel who testified that navigation would be disrupted on the river—perhaps for months—if the floodway was not used and other levees failed).

The history of the levee system’s development supports the court’s conclusion. Before the Flood Control Act of 1928, the Corps had been largely concerned with flooding on the Mississippi River only as it related to navigation. Indeed, when Congress first authorized federal funding to build levees along the river in the 1880s, it specifically provided that the only purpose for the funding was to maintain and deepen the channel for navigation—and not for preventing injury to surrounding lands from river overflow. Act of Mar. 3, 1881, ch. 136, 21 Stat. 468, 474. It was not until the early 1900s that the federal government began recognizing flood control as a part of the national responsibility and specifically approved a flood control plan in the 1928 Act.

Although the 1928 Act recognizes the benefits to local interests, it also emphasizes the “national concern in the control of these floods in the interests of national prosperity, the flow of interstate commerce, and the movement of the United States mails.” Act of May 15, 1928, § 2, 45 Stat. 534, 535. Although this provision does not expressly mention navigation, the courts have found navigation to be a component of interstate commerce because navigable waters were an important mode of travel for conducting commerce in the nation’s history. The Supreme Court stated that “interstate commerce,” as used in the Constitution, “comprehends, and has always been understood to comprehend, navigation within its meaning; and a power to regulate navigation, is as expressly granted as if that term had been added to the word ‘commerce.’” Gibbons v. Ogden, 22 U.S. 1, 193 (1924).

Recognition of navigation as a component of interstate commerce has important ramifications for takings law because the federal courts have recognized navigable waters as “the public property of the nation, and subject to all the requisite legislation by Congress.” Gilman v. Philadelphia, 70 U.S. 713, 724–25 (1865). As a result, although the states and riparian landowners hold title to the shore and the submerged lands beneath navigable waters, those property rights are subject to a federal navigational servitude.

This power to regulate navigation confers upon the United States a “dominant servitude,” . . . which extends to the entire stream and the stream bed below ordinary high-water mark. The proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject.

United States v. Rands, 389 U.S. 121, 123 (1967).

In short, the government is not liable for taking private property when it is exercising its rights under the navigational servitude; instead, any injury that a property owner suffers is merely incidental or consequential damages resulting from “the exercise of a servitude to which [the privately owned] property [has] always been subject.” Gibson v. United States, 166 U.S. 269, 276 (1897). Conversely, the government might be held liable when it floods private lands outside of the ordinary high-water mark of a river—even if it is acting in aid of navigation. See United States v. Cress, 243 U.S. 316 (1917). Whether this liability exists in the latter case, however, depends on whether the government’s action constitutes a tort or a taking.

A Taking or Tort?

The distinction between torts and takings is critical because takings must be compensated under the Takings Clause. U.S. Const. amend. V. By contrast, if the action is one in which a private individual would have had liability in tort, there is no remedy against the United States because such actions would be barred by sovereign immunity. See Sanguinetti v. United States, 264 U.S. 146, 150 (1924). Although the government may waive its immunity, the 1928 Flood Control Act does not do so; to the contrary, it states, “[n]o liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place.” Act of May 15, 1928, § 3, 45 Stat. 534, 536.

Recognizing that a taking would occur in some situations, the 1928 Act provided for the government’s purchase of flowage easements “for additional destructive flood waters that will pass by reason of diversions from the main channel of the Mississippi River.” Id. § 4. Under this authority, federal officials purchased flowage easements on about 100,000 acres within the floodway at an average price of $17 per acre. MRC Information Paper, at 7. As explained below, however, the government declined to purchase easements for some parcels within the lower portion of the floodway because those parcels were already subject to backwater flooding. For those property owners to recover in the pending action regarding the 2011 flood, therefore, they must establish that activation of the floodway constituted a taking of their property, rather than an uncompensable tort.

The Supreme Court explained the distinction between tort and takings in Sanguinetti, 264 U.S. at 149, stating:  “[T]o create an enforceable liability against the government, it is, at least, necessary that the overflow be the direct result of the structure [built by the government], and constitute an actual, permanent invasion of the land, amounting to an appropriation of and not merely an injury to the property.” Thus, the courts have held that a taking occurs when the government’s action permanently inundates private property with water, as when a dam causes water to overflow the navigation channel onto private lands. Pumpelly v. Green Bay Co., 80 U.S. 166 (1871).

When the flooding is temporary, however, the line between tort and takings is not clear. The Supreme Court has stated that a taking may occur from “intermittent but inevitably recurring overflows[,]” in which case the government has taken an easement, rather than the fee. Cress, 243 U.S. at 328–29. Other decisions, however, “have held that one, two or three floodings by themselves do not constitute a taking.” Nat’l By-Products, Inc. v. United States, 405 F.2d 1256, 1273 (Ct. Cl. 1969). Thus, “the distinction between ‘permanent liability to intermittent but inevitably recurring overflows,’ and occasional floods induced by governmental projects, which we have held not to be takings, is, of course, not a clear and definite guideline.” Id.

To add a further wrinkle, a court also might apply common law surface water rules to consider whether the government, in protecting its property right in the navigation servitude, has the same right as other property owners to divert surface waters without liability to other landowners for the flooding that may result. See Alan Romero, Takings by Floodwaters, 76 N.D. L. Rev. 785, 804–05 (2000). Whether this theory would justify use of the floodway, however, depends on whether the court finds the government’s interest in the navigation servitude to be analogous to a property owner’s surface rights in land. It would also require the court to choose between three different common law rules that the states have applied. Id.

Takings Cases Concerning the Birds Point–New Madrid Floodway

In early cases challenging the Birds Point–New Madrid Floodway, courts applied the principles discussed above to find that no taking had occurred—at least not during the construction phase of the project. In Kirk v. Good, 13 F. Supp. 1020 (E.D. Mo. 1929), an owner of property within the proposed floodway sought an injunction against the construction of the setback levee, alleging that the government’s action would prevent him from selling his property or using it as loan collateral. The court held that the awarding of contracts for the setback levee did not constitute a taking; instead, the injuries the plaintiff alleged “are mere consequential damages such as the prospective construction of any great public work is likely to entail, and for which relief is not afforded.” Id. at 1021. Confining the case to the facts that existed at the time, the court declined to “anticipate that [the federal government] in the future, without instituting and prosecuting a condemnation proceeding in the manner provided by law, will appropriate plaintiff’s property by removing any part of the present levee along the west bank of the Mississippi river, and thereby flood plaintiff’s land.” Id.

In Matthews v. United States, 87 Ct. Cl. 662 (1938), the court rejected the landowner’s claim that construction of the setback levee and the government’s plan to lower the height of the fuse plug sections to 55 feet effected a taking of his property. The claim was actually premature because the Corps had not yet lowered the fuse plug levee and, in fact, never did so; instead under the Flood Control Act of 1965, the Corps raised the entire frontline levee, but raised the fuse plug sections only to 60.5 feet while raising the rest of the levee to 62.5 feet.

Nonetheless, the court proceeded to analyze the takings claim and rejected it because the Matthews tract was already subject to backwater flooding. “Plaintiff’s property has always been . . .
subject to overflow and the facts establish that at least 98.8 percent of plaintiff’s land has always been, and still is, completely covered with water to a depth of 18 feet and under when the waters of the Mississippi River attain a stage equivalent to 55 feet on the Cairo gauge.” Id. at 719–20. In other words, operation of the floodway would simply put additional water into an area that was already flooded.

The court conceded that the operation of the floodway could create a surge of water that would scour the land close to the fuse plug levee and leave large deposits of sand and gravel. The court found those concerns were not applicable to the Matthews tract, however, for two reasons. First, the court noted that the landowner’s property sat 12 miles from the center of the fuse plug section. Because of this distance, any water that came over the fuse plug would have a velocity of less than one mile per hour by the time it reached the Matthews property. Second, even after the floodway was activated in 1937, only a very thin deposit of silt was left on the tract, which was too small an amount to be injurious to the property.

There is a touch of irony in the court’s resolution of Matthews. As explained in a companion case, Matthews filed the takings claim after the parties had reached an impasse in negotiations for the purchase of a flowage easement. The government had initially offered about $19 per acre for the easement, but subsequently withdrew the offer when the Justice Department found the offer “too high to be conscientiously recommended to a court.” Matthews v. United States, 113 F.2d 452, 454 (8th Cir. 1940). Matthews rejected subsequent offers at “substantially lower valuations” (which were not disclosed in the opinion), forcing the government to bring a condemnation action. Id. After the Court of Claims rejected the takings claim in the suit initiated by Matthews, however, the government determined that it was no longer necessary to purchase flowage rights for property that was subject to backwater flooding. The government, therefore, moved to dismiss the condemnation suit against the Matthews tract.

Matthews appealed the order of dismissal in the condemnation case, arguing that the 1928 Flood Control Act required the government to purchase flowage easements for all property subjected to overflow because of the floodway. The court of appeals disagreed, concluding that “the findings of fact of the Court of Claims establish that no ‘additional destructive flood waters’ pass over Matthews’ land by diversion.” Id. at 457. Thus, “[t]here has been no physical appropriation of Matthews’ property, and . . . he has no rights or interests which could properly be condemned under the terms of the Act.” Id. As a result, the government did not purchase an easement to the Matthews tract “even though flowage rights had already been purchased for more than 30,000 acres comprising several other tracts within the backwater limit.” MRC Information Paper, at 7.

The Supreme Court confirmed the underlying principles of Kirk and Matthews in Danforth v. United States, 308 U.S. 271 (1939). At issue in Danforth was whether the government owed interest on a condemnation award for a flowage easement. Danforth claimed that he was entitled to interest because the easement had been taken when the 1928 Flood Control Act took effect—about 10 years before judgment was entered in the condemnation action. The Court disagreed, stating that mere passage of legislation cannot be a taking even if it results in a reduction in the value of the property. The Court also rejected Danforth’s claim that the taking occurred when the setback levee was completed. Instead, the Court found that a taking occurs when the government exercises its rights after the price is set in the condemnation proceeding; before that time, the government has the option of abandoning its effort.

In dictum, the Court commented that “[t]he Government could become liable for a taking, in whole or in part, even without direct appropriation, by such construction as would put upon [the plaintiff’s] land a burden, actually experienced, of caring for floods greater than it bore prior to the construction.” Id. at 286. The Court concluded that this burden had not been imposed in Danforth’s case, however, even when the government artificially crevassed the levee during the 1937 flood. Similar to the Matthews case, the Court noted that Danforth’s land would have already flooded before additional water was diverted into the floodway. Although the floodway activation increased the depth of the water on Danforth’s land and kept it there slightly longer, “[w]e cannot conclude that the retention of water from unusual floods for a somewhat longer period or its increase in depth of destructiveness by reason of the set-back levee, has the effect of taking.” Id.

The 2011 Takings Claim

Although Matthews and Danforth were decided after the 1937 flood in which the floodway was activated, the claims focused on the legislation creating the floodway, rather than on the floodway’s operation. Thus, the claims brought by landowners based on the 2011 flood will be the first to apply the takings analysis to the actual operation of the floodway.

Complicating the analysis is the existence of flowage easements on about 80% of the acreage in the floodway. Although such easements arguably establish the government’s right to divert water over property subject to those easements, the lawsuit alleges that the government failed to acquire easements for some parcels. Big Oak Farms, Inc. v. United States, No. 1:11-CV-00275-NBF (May 3, 2011). Moreover, to the extent that property is covered by an easement, the lawsuit alleges the government’s actions exceeded the scope of the easements. Each of these claims presents its own complicated issues.

First, for property that is not covered by a flowage easement, the court will be required to apply the tort vs. takings analysis described above to determine whether the floodway’s operation results in “intermittent but inevitably recurring” flooding. Establishing that the floodway’s operation meets this standard may be a challenge, given that the floodway has been put into operation only twice in its history. One could argue that this standard is met because the plan envisions activating the floodway whenever the river reaches the “project design” flood stage, but nothing in the Flood Control Acts of 1928 or 1965 requires the floodway to be operated. Accordingly, the court might find that future flooding is not inevitable.

Other factors relevant to the takings analysis will include the extent and depth of any backwater flooding present in the floodway before the frontline levee was artificially breached, along with the volume and velocity of the floodwaters that entered the floodway through the breaches. As indicated in Matthews and Danforth, the presence of slow-moving floodwater because of the floodway’s operation is not a taking if the property is already inundated with a significant level of backwater flooding.

Second, for lands inside the floodway where easements were acquired, the plaintiffs allege that the government’s 2011 operation plan exceeded the scope of those easements. The complaint alleges that some easements were based on the government’s original floodway operation plan, adopted under the 1928 Act, which was based solely on natural crevassing of the fuse plug section of the levee when the river reached 55 feet. This plan was modified, however, under the Flood Control Act of 1965 to provide for artificial crevassing of the fuse plug section by explosives. Although the government acquired modified flowage easements for a portion of the floodway based on these changes, the lawsuit alleges that the plan was changed once again in 1983 to allow artificial crevassing at several additional locations and that the modified easements are not broad enough to cover the amended plan.

A critical issue for the scope of the flowage easement, therefore, will be the effect, if any, that artificially crevassing the levee at two additional places had on property inside the floodway. This inquiry may require a tract-by-tract analysis, as there could very well be property that was not affected differently because of the two additional explosions.

The plaintiffs also claim that the government paid too little for the flowage easements. Oak Farms, Inc., Complaint ¶ 93 (“To the extent that any flowage easements exist, [the government] obtained them for value greatly below their fair value so as to be inequitable”). Looking beyond the statute of limitations and res judicata defenses the government is likely to raise, the merits of this claim are difficult to assess without more specific details about land values at the time the flowage easements were purchased. The Matthews cases give us only a hint of the relative values, indicating that the government offered something less than $20 per acre for easements on the tracts involved in that case, as compared with the $75 to $85 per acre that Matthews got from selling the fee simple interest to portions of the tract in 1936.

In deciding this issue—as well as what compensation might be due for cases in which the government had not acquired an easement—the court will need to consider what weight to give to the benefits that property owners gained from construction of the levee system. Although the floodway has been used twice since it was constructed, the frontline levee has spared property owners within the floodway from many smaller flood events that would have periodically inundated the property without that protection. Recognizing this fact, Congress provided in the 1928 Flood Control Act that “in all cases where the execution of the flood-control plan herein adopted results in benefits to property such benefits shall be taken into consideration by way of reducing the amount of compensation to be paid [for the flowage easements].” Act of May 15, 1928, § 4, 45 Stat. 534, 536.

Finally, the 2011 suit alleges that a taking has occurred from the aftereffects of the flood. Although the floodwaters from the operation of the floodway were a temporary invasion, the plaintiffs allege that sand and gravel deposited on their property as a result of the floodway’s operation compromised the ability of drainage ditches to carry rainwater off their properties, subjecting it to recurring flooding from rains ordinarily incapable of causing such flooding, and resulted in a taking. This argument may find some support in Barnes v. United States, 538 F.2d 865, 870 (Ct. Cl. 1976), which recognized that a taking may occur when a
“[g]overnment-induced deposition of sediment in a riverbed causes the river to overflow its banks.” Moreover, in some cases, the flowage easements on floodway property expressly provide for property owners to be compensated for “excessive deposits of sand and gravel upon the lands . . . as a direct result of the planned operation of the floodway.”

As with the plaintiff’s other easement claims, the sand and gravel inquiry would also require a tract-by-tract analysis because different tracts will be affected in varying degrees, if at all, by those deposits. The court may need to determine the extent to which each tract was subjected to deposits that exceeded what they would have incurred from flooding caused by a natural overtopping of the levee system. Claims brought under the express provisions in the easements will hinge, of course, on what deposits are “excessive.”

Conclusion

Congress authorized the construction of the Birds Point–New Madrid Floodway to protect against massive loss of lives and property like those that occurred in the devastating flood on the Mississippi River in 1927. The Corps of Engineers sought to accomplish that goal by putting the floodway into operation when the river reached a new record flood stage in 2011 and put unprecedented pressure on an aging levee system. Use of the floodway, however, resulted in the loss of homes and crops located within the floodway itself, raising a number of thorny takings issues that the Court of Claims will have to resolve.

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