Billion dollar flooding lawsuit gets off the ground

By WYATT EMMERICH,

Five hundred Mississippi landowners scored a big victory in Natchez recently in their quest to be reimbursed a billion dollars by the federal government for flooding their land.

The U. S. Army Corps of Engineers was asking federal claims court judge Elaine Kaplan to dismiss the suit. After an hour of hearing both sides, Kaplan ruled that the suit could go forward.

Kaplan made the ruling directly from the bench that day – a most unusual action. Typically, judges wait weeks or months to review the arguments and then issue a written ruling.

Kaplan’s immediate bench ruling bodes well for the ultimate success of the lawsuit. The 100 or so plaintiffs and their attorneys who attended the hearing were almost giddy with excitement.

The Mississippi plaintiffs have some heavy hitters for attorneys. Legendary trial lawyer Don Barrett of Lexington has teamed up with top-notch Washington D.C. firm Cuneo, Gilbert & LaDuca, an expert in takings cases. This is the real deal.

The case is pretty easy to understand. Seventy or so years ago, experts realized the Mississippi River was about to divert from its historical path through Baton Rouge and New Orleans. An alternative route down the Atchafalaya River basin was half as long and twice as steep. Sooner or later, Mother Nature was going to reroute the mighty Mississippi.

The movers and shakers of this country realized that would be a disaster. There was a trillion dollars in ports, oil refineries and infrastructure around the Mississippi River at Baton Rouge and New Orleans. They couldn’t let the river divert.

So Congress authorized the corps to build the Old River Control Structure 35 miles south of Natchez in 1963 and the Morganza floodgates 25 miles south of that. It was a marvelous engineering feat. It works by diverting 70 percent of the Mississippi to New Orleans and only 30 percent down the Atchafalaya River.

Only one problem. By channeling and controlling the river, the silt inevitably built up on the river bottom, raising the water levels of the river. The water had to go somewhere. It went into Mississippi, flooding 500,000 acres. Over time, the flooding has gotten worse. A flood that might happen once every 15 years is happening every year, destroying the usefulness of the land for farming, ranching, drilling or hunting.

As Jonathan Cuneo told the judge: “Congress and the corps didn’t do anything wrong. But the public should bear the cost.”

In other words, the Congress’ attempts to save a trillion dollars of infrastructure at an engineering cost of $14 billion made perfect sense. And it made perfect sense to implement a plan that would eventually cause upriver flooding. That land was one-thousandth of the value of the ports and refineries.

That’s not the point. The point is that the Mississippi landowners should not have to bear the cost of having their land flooded for the public good. The feds need to compensate them for what they have done to their land.

This is a classic takings case. The Fifth Amendment of the United States Constitution forbids the federal government from taking someone’s property for a public good without fairly compensating them. As a result, there is an entirely separate federal claims court system to hear these cases. The case law is well established and the Mississippi landowners have a great deal of legal precedent on their side.

Mississippi, through the Secretary of State’s office, has joined this lawsuit as the main plaintiff. Former Secretary of State Delbert Hoseman saw how the state was losing tens of millions of dollars because 16th Section land, designated for funding schools, were rendered unproductive.

The new Mississippi Secretary of State, Michael Watson, was at the trial. Sitting in the audience were dozens of local school officials who have seen their 16th Section land money decline dramatically. From the plaintiffs perspective, this probably created some politically positive trial visuals for the Obama-appointed judge.

This lawsuit is just the start. There are other lawsuits representing other distinct groups harmed by the flooding.

Perhaps the greatest damage is being done to the Mississippi Sound, where the crab, oyster and fish industries are being strangled by salinity changes and algae blooms caused by the opening of the Bonnet Carre discharge gates on Lake Pontchartrain. Those damages could be in the billions.

Since it was built after the disastrous 1929 flood, the Bonnet Carre has been opened 14 times. Four of those times came in the last four years.

Then there are landowners in the Yazoo drainage basin who are seeing a huge increase in flooding frequency and severity. The Yazoo basin flows into the Mississippi basin. But when the river is high, these close the gates at Steele Bayou just north of Vicksburg, which makes the Yazoo basin flooding worse.

At the trial, I talked to multiple landowners, big and small. They all told the same story of steady increases in the frequency and severity of the floods until their land became useless.

The corps will argue this is caused by increased rains and global warming. There is a slight increase in precipitation, but not nearly enough to cause the flooding. This will be a battle of expert witnesses. The corps will find it difficult to show that Mississippi isn’t an innocent casualty in its effort to save Baton Rouge and New Orleans.

The corps could immediately alleviate the Mississippi floods by sending more water down the Atchafalaya using the Old River Control Structure. This is where politics gets involved. Mississippi’s influence in Congress isn’t what it once was. Such a policy change would flood a lot of development that has slowly increased in the Atchafalaya floodway and around Morgan City.

Or, worst of all, Mother Nature may trump all the legal wrangling. The Mississippi River is long overdue for a major course change, which has happened over the centuries with amazing regularity. Such levee break could kill thousands and turn the Atchafalaya River into the lower Mississippi River. 

That would permanently solve Mississippi’s flooding problem. But the cost to the nation would be immense.