Written by: Amie Alexander, JD/MPS Candidate, William H. Bowen School of Law


On, March 13, 2018, The United States Court of Federal Claims issued the court’s findings of fact and conclusions of law for Phase I of a trial alleging an unconstitutional taking based on actions by the United States Army Corps of Engineers (“Corps”) on the Missouri River. You can read the opinion in its entirety here.

Background to this Action

This action was brought by 372 farmers, landowners, and business owners from six states, claiming the Corps’ changes to its management of the Missouri River caused flooding of their properties. After 2004, the Corps made changes to its operation of the Mainstem Reservoir and Dam System to meet environmental responsibilities stemming from a 2003 Biological Opinion from the Fish and Wildlife Services. Forty-four “bellwether” representative plaintiffs together assert takings claims based on over 100 flood events stemming from these changes. To manage the litigation, the court divided it into two phases: the first stage focused on the United States’ liability, while the second phase will focus on whether the United States has any defenses, and other legal and factual issues associated with proving the claim.

The Court’s Phase I Findings

To succeed, plaintiffs needed to establish causation, foreseeability, and severity. Causation was the threshold issue decided in this case – whether plaintiffs could establish that the Corps caused the flooding upon which plaintiffs based their takings claims. Plaintiffs were also required to prove foreseeability by showing either (1) that the Corps intended to take plaintiffs’ property interests by its actions in making the System and River Changes it instituted to comply with the Endangered Species Act (ESA); or (2) that the invasion of the plaintiffs’ property interests was the “direct, natural, or probable result” of the Corps’ System and River changes. To prove severity, plaintiffs must usually prove that the injury “constituted a sufficiently severe invasion that interfered with the landowner’s reasonable expectations as to the use of the land.” However, the court reasoned that plaintiffs were not required to establish the full extent of the injury to their property interests in this phase of the litigation. Therefore, plaintiffs only had to demonstrate an invasion by government flooding that interfered with the plaintiff’s use and enjoyment of the property for some period of time in order to proceed to Phase II of the ligation.

The court found that the Corps’ changes to the river caused or contributed to flooding in 2007, 2008, 2010, 2013, and 2014. The court concluded that 14 plaintiffs established causation, foreseeability, and severity, and thus their taking claims will proceed to the next phase of the litigation. The court concluded that 14 other plaintiffs established causation and foreseeability, but did not establish severity. These plaintiffs will move on to the next phase of litigation, but will be required to establish severity there. Sixteen remaining plaintiffs failed to prove causation and thus were subject to dismissal.

Phase II of the litigation will focus on whether the government has defenses to the claim, as well as proving entitlement to just compensation in the appropriate amount.