A federal judge ruled last week that a federal agency’s actions to improve habitats for endangered species along the Missouri River exacerbated floods, causing damage to local farmers whose land was temporarily inundated. Although this was only the first part of a multiphase case, if the ruling is upheld it could undermine future river restoration efforts nationwide and stymie enforcement of the Endangered Species Act (ESA) by forcing the government to pay damages to any landowner affected by environmental restoration activities.
“The implications of this ruling are huge,” says Brad Walker, who headed river restoration efforts for the Missouri Coalition for the Environment in St. Louis before retiring earlier this month. “It’s attacking the heart of the legitimacy and reason for doing river restoration.” If the ruling is upheld in the next phase of the case, which is anything but certain, “it would effectively kill the application of the Endangered Species Act,” says John Echeverria, an environmental lawyer at the Vermont Law School in South Royalton.
The case, filed in 2014, was brought by a group of 372 landowners along the Missouri River in Nebraska, Missouri, Kansas, and Iowa. They claimed that efforts by the U.S. Army Corps of Engineers to manage water releases from upstream dams to benefit endangered fish and wildlife habitat exacerbated floods in 2007, 2008, 2010, 2011, 2013, and 2014. According to the plaintiffs, this caused an estimated $300 million in damage. They claim the flooding represented a government “takings” of their property, violating the U.S. Constitution’s Fifth Amendment, which prevents the government from seizing private property. Ultimately, Judge Nancy Firestone of the U.S. Court of Federal Claims in Washington, D.C., selected 44 landowners to serve as “bellwether plaintiffs” to assess the claims.
Historically, the Missouri River, known as “the Big Muddy,” followed a meandering, braided path and flooded annually, says Robert Criss, a hydrologist at Washington University in St. Louis. Beginning in the 1930s, engineers constructed a series of six dams and reservoirs. They also narrowed and straightened the river to allow barge navigation, and constructed hundreds of miles of levees along its banks. The changes destroyed nearly all of the shallow water marshes critical for fish and wildlife, Walker says. That prompted lawsuits by environmental groups that compelled the Corps to include habitat restoration in its management plans for the river. Starting in 2004, the Corps began holding more water in reservoirs over the winter and spring to provide more water for fish and wildlife during the summer months. They also reopened previously blocked side channels to create more shallow water habitat.
On 13 March, Firestone ruled that those changes exacerbated floods in all the years in question except 2011, when the flooding was so extreme that the Corps would have been unable to prevent it no matter what actions it took. She also ruled that the flooding was a foreseeable result of the Corps management plan. Farmers in the region welcomed the ruling, as did Senator Roy Blunt (R–MO). “I’m pleased that the Federal Claims Court has found what Missouri families, farmers, and business owners have been saying for more than a decade: The Army Corps of Engineers’ mismanagement of the Missouri River has resulted in widespread damages with substantial costs,” Blunt said in a statement.
Next, the government will have a chance to lay out its defense. Among its likely arguments, Echeverria says, is that though temporary flooding can harm farmland, it is not the same as permanent seizing of property by the government. The U.S. Flood Control Act of 1968 also prevents the U.S. government from being held liable for flood control actions it takes. “I don’t think the government can be held liable,” Echeverria says. If it is, the judge will then determine the amount damages landowners are entitled to receive.
Such monetary awards would have major implications for environmental restoration efforts around the country and could severely undermine the ESA, Echeverria and others predict. For ESA proponents, “it’s a cause for serious concern,” Echeverria says. A final victory by the plaintiffs could prompt landowners in other river basins, such as the Klamath River in Oregon and California to claim similar damages from restoration efforts, Echeverria says.
Even if the government ultimately prevails, the case may still have a chilling effect on river restoration efforts in the future. “There is little doubt that farmers along the Missouri Valley, their federal and state government representatives (including Senator Roy Blunt), and the Ag Lobby (which includes the Corn Growers Association) will use the ruling to publicly bludgeon environmentalists,” Robert Schneiders, an environmental historian who has written two books about the Missouri River, wrote in an email. “For Big Ag, this ruling will be the public relations gift that keeps giving.”