THE ISSUE: Missouri River
LOCAL IMPACT: A court ruling unsealed on March 13 may have significant impact on Missouri River management in the future.
A 259-page ruling by U.S. Court of Federal Claims Judge Nancy Firestone, unsealed on Tuesday, March 13, could set precedent for determining legal responsibility for flood events.
The verdict for a case tied to the flooding of the Missouri River in 2011 determined that the flood event was the fault of the government, i.e. the Army Corps of Engineers.
So, how did the case get to this point? And what does the ruling mean?
To understand the Missouri River complaint, it’s important to go back to a specific year—2006. It was that year that the Army Corps of Engineers re-made its priority list when regulating the Missouri River.
For years, the Corps of Engineers had been aware of the plight of endangered and threatened species, birds like the least tern and the piping plover. In 2006, the Corps made the decision to prioritize recovery of such species much higher than ever before, and, according to some critics, higher than the priority of flood control, under which all decisions would be made to protect property and the livelihood of residents along the river.
In the years that followed, flooding increased.
The flooding became historic in 2011 when a combination of historic snowpack and drenching rains in the Missouri River basin led to large releases from the six dams that make up the Missouri River system.
Critics said that the Corps plans to help endangered and threatened species had prevented early releases of water that could have prevented flooding. And the Corps officials said there was no way that historic snowpack, made complicated by a cool spring limiting early run off, and drenching rains could have been predicted.
Nonetheless, with reservoir at near capacity, the Corps began to release incredible water totals. On May 1, 2011, the dam at Gavins Point, the southern-most dam in the Missouri River system, was releasing at 45,000 cubic feet per second. That flow increased to a record total of 77,000, exactly 7,000 above the previous release record. In June, the flow increased to 160,700.
As the water traveled downstream, levees were overtopped and breached and the Missouri set all new records before cresting at Nebraska City at 28’27”, a foot higher than the previous record of 27’19”, which was recorded in 1993.
The 2011 crest was over 10 feet above the depth that leads to flooding at Nebraska City. As a result of levee breaches, water flows destroyed agricultural land and homes and washed away roads, leaving residents with business on the other side of the river to travel great distances and expand travel expenses to reach their destinations. Highway 2 connecting Nebraska City to southwest Iowa, closed for weeks.
With damages incurred, residents began to demand accountability.
Leo Ettleman of the local group Responsible River Management said momentum for a lawsuit against the government in regard to the Missouri River flood began soon after the flood event of 2011 and was coming to a head by mid 2012 or early 2013.
A lawsuit, filed March 5, 2014, involved 385 plaintiffs from Bismark, N.D., to Kansas City, Mo.
Ettleman said it took a long time to get all fo the plaintiffs signed up for the case.
Out of the 385 plaintiffs, a total of 44 were named as bellwether plaintiffs. These would be the plaintiffs who would eventually offer sworn testimony and depositions regarding the flood lawsuit.
Ettleman was one of the bellwether plaintiffs.
The plaintiffs went to Kansas City, Mo., to offer testimony for the case.
Later action in the case, the government side of the proceeding, was conducted in Washington, D.C. By having the plaintiff side of the case in Kansas City, the plaintiffs were spared the hardship associated with travel.
Ettleman said he traveled to Washington, D.C. to attend the final part of the trial.
The judge in the case worked her way through thousands of documents and heard hours of testimony during a 55-day proceeding. The closing arguments alone took eight days to complete.
By the end of the trial, however, Ettleman said the plaintiffs were confident that their lawyers had done a good job and that the decision could indeed go their way.
In her ruling, Judge Firestone noted that the federal goverment’s operation of dams and other structures along the Missouri River had caused persistent and often major flooding across four midwestern states including Nebraska and Iowa.
The verdict closed phase one of the proceedings. The next phase will determine damages with estimates of $300 to $400 million.
Ettleman said damage experts have been working for the plaintiff side to find out what final number might be arrived upon.
The damages portion of the proceedings will begin sometime in October.
In addition to the potential receipt of damages, plaintiffs are also hoping that the ruling will lead to a re-priorizing of Missouri River management decisions such that river flood events will be lessened in frequency and intensity.