Following up on last week's posts on Christine Klein and Sandra Zellmer's new book, here's another post from them, originally posted on CPRBlog:
Ft. Calhoun Nuclear Reactor , Nebraksa in the midst of flooding Missouri River (Corps of Engineers) |
Landowners flooded by the Missouri
River in 2011 have sued the Corps of Engineers for a Fifth Amendment “taking” under
the U.S. Constitution. Their attorneys hope
to rake in over $250 million in claims for their clients and at least $1
million in expenses and fees for themselves. They’re likely to be disappointed.
Lawsuits
seeking recovery of flood damages from the federal government almost always fail. First, the United States is immune from
suit for negligent construction or handling of flood control structures under
the sovereign immunity shield of the 1928 Flood Control Act, as plaintiffs
whose lives were destroyed when levees failed during Hurricane Katrina quickly discovered. My co-author Christine Klein and I have called
for a repeal of this provision in our article and book on Unnatural
Disasters, but it hasn’t happened.
In
hopes of avoiding the immunity problem, the Missouri River plaintiffs have brought
a claim under the Fifth Amendment, which is not barred by the Flood Control
Act. However, this claim is just as
unlikely to stick, for good reason. As
we document in our previous work, courts find that floodplain management
constitutes a regulatory taking in only the rarest of cases, whether the impact
to private property occurs through land use restrictions on construction or
through flood control structures like dams and levees. This is because the impact is neither a “permanent
physical occupation” of the property by the government, nor is it an excessive
regulation that deprives property of “all
economically beneficial use” or has otherwise gone “too far” in adversely
affecting reasonable investment-backed expectations of the floodplain owners
(in the words of the U.S. Supreme Court). It is simply not
reasonable to settle in the floodplain and expect that the property will
never flood.
These
plaintiffs are attempting to bring their claims within the
purview of a 2012 Supreme Court case, Arkansas FGC v. U.S,
where a landowner (the State Fish & Game Commission) prevailed on its
claim that the Corps had physically taken a flowage easement over its
land. The case raised a unique set of facts and the decision is a
remarkably narrow one, and it is completely inapposite to what happened on the
Missouri River. Here’s why.
In
Arkansas, the Corps opted to depart from its
Water Control Plan for the dam in question by releasing water over longer
periods each year during a seven-year period, not because of any physical imperative
(e.g., unusual amounts of rain or
snow) but because farmers urged it to do so to keep their croplands dry for
longer periods during harvests. The
deviation caused a dramatic increase in flooding in a wildlife management area
owned by the State, causing widespread and permanent damage to its trees.
The flooding was significant enough, for long enough periods, to change
the character of the area and to substantially interfere with the State’s
ability to use its land. The Corps had
effectively taken title to the land without going through the appropriate
processes for exercising the government’s power of eminent domain.
In stark
contrast to the 2011 Missouri River flood, the Corps’ intentional flooding of
Arkansas’s land was the direct and proximate cause of the foreseeable
destruction of the State’s property. The Corps deviated from its Arkansas
Plan in order to benefit the farmers, when it knew (or should have known) that
the deviation would inevitably destroy the State’s land. The Corps created winners and losers, and the
Supreme Court forced it to pay the loser.
On the
Missouri, the 2011 flood made losers out of just about everyone. The Corps’ flood control structures were taxed
to their limits by unprecedented amounts of snowmelt and rain over a long
period of time in the spring and summer of 2011. In April, Rocky Mountain snowpack was 140% of normal; later in the summer,
rainfall was three to six times normal
in the upper Missouri River Basin. At Sioux City, Iowa (the demarcation between
the upper and lower river), runoff measured 13.8 million acre feet (MAF),
smashing the old 1952 record of 13.2 MAF.
The third wettest month ever documented on the Missouri River happened
to be May 2011 (10.5 MAF) and the fifth wettest was July 2011 (10 MAF). See National
Weather Service, The Historic Missouri
River Flood of 2011; Senate Report 112-075 - Energy and Water Development Appropriations Bill, 2012.
That water had to go somewhere, and once the dams were filled to
capacity, it went downstream and into the floodplain, as rivers naturally do
(especially the Missouri, which is widely known for its flood-prone
tendencies).
The
plaintiffs argue that the Corps has abandoned its flood control mission in
favor of other priorities on the Missouri River. Specifically, they claim that the Corps kept
the reservoirs full in the spring to benefit recreation and endangered species,
and that fuller reservoirs means less storage for flood waters. The factual
record doesn’t back them up, and the law is more nuanced than they allege. In truth, Congress directed the Corps to
build the dams and manage the system for seven
purposes in addition to flood control: navigation; hydropower; water
quality; water supply; irrigation; recreation; and fish and wildlife. Flood control and navigation may be toward
the top of the list, but they are far from the only concerns that drive river
management. More to the point, none of
the other purposes were prioritized at the expense of flood control in
2011. The Missouri River system was
operated in accordance with the Master River Manual in
response to abnormal snowmelt and rainfall that just kept coming for months on
end. The operations were dictated by
conditions, not by other priorities. Sometimes,
the river simply reclaims its floodplain, despite human efforts to hold it
back.
The
tired refrain that the government elevated the concerns of fish over people is
a red herring. The
real problem is that people wanted to settle in the floodplain, so the federal
government undertook flood control, which prompted more people to move into
harm’s way. It’s ironic that the landowners who cry “foul” today have received
a bounty of flood control-related benefits from the government through the
years. No doubt the flood damage to
their properties in 2011 would have been worse if the federal government hadn’t
built dams and other structures on the Missouri River. Consider the 1993 flood, which set the record
for the highest water level in Kansas City, but resulted in much lower
discharges (flooding) than pre-dam floods in the 1800s and early to mid-1900s.
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