Flooding Displacement and Damages

Since May 2011, Domina Law Group has been working with landowners and concerned individuals and investigating potential claims against the U.S. Army Corps of Engineers for property damage to homes, land and businesses along the Missouri river.

We have and continue to research legal options and issues regarding the current flooding, likely future flooding, and possible remedies available to residents and affected land and property owners to recover monetarily for their losses.

Domina Law Group lawyers David A. Domina and Brian E. Jorde have held a series of meetings discussing legal issues and answering your questions. The first meeting was in Niobrara, Neb., Saturday, June 4, 2011. Approximately 200 people participated in that discussion. | Norfolk Daily News Article.

Our most recent meeting was in Tekamah, NE on December 9, 2011. In the past 6 months we have traveled up and down the Missouri and have been compiling information critical to potential future legal action against the Corps.

More Information and Updates Below

To Victims of the 2011 Flood

The following thoughts about matters related to the Missouri River flood are offered for general information. Like all matters on our website, these postings do not create an attorney-client relationship or entitle a website reader to rely on our observations or comments.

1. Our attention continues regarding potential claims against the Corps of Engineers for matters associated with the 2011 flood. The flood’s duration, its unmistakable relationship to extraordinary weather events, and uncertainty about the extent of damage which will only be known after the water subsides, prevents any final decisions about how to proceed at this point.

2. The Corps recently announced, on its website, a right for persons to file federal tort claims for damages. BE CAREFUL ABOUT DOING SO. In fact, we recommend against tort claims. The United States has not waived its sovereign immunity for suit for most matters involving floods or regulation of the dam system affecting the Mississippi River and its tributaries. This means tort claims have a very low level likelihood for success, except in extraordinary circumstances where the Corps’ palpable neglect was not associated with regulating the dams but may have been associated with some other aspect of the Corps’ duties, such as conscious decisions to sacrifice some properties to save others. These judgments may amount to takings under the Fifth Amendment which are compensable. They probably are not compensable torts.

3. We continue to gather facts, hear from many of you (and hope to hear from more of you and more from each you) and to study the law which is extremely complex in this area.

General Legal Information

For the Summary Handout provided at June Niobrara, NE Meeting click here

US Court of Federal Claims

Most cases seeking compensation from the United States and the Corps of Engineers must be filed in the U.S. Court of Federal Claims, located in Washington D.C., if they involve claims of "takings" of property by the government, either through direct action, or as a consequence of what the government does that has permanent consequences. Some types of claims for short term injuries, called torts, can be filed in U.S. District Court. The government cannot be sued like anyone else - special procedures are involved.

Most likely to have a chance of winning in the Claims court you will have to allege a physical taking due to the flood waters overtaking your property. Takings can be temporary or permanent. For a basic overview of Takings examples click here.

Few Midwestern lawyers are admitted to the U.S. Court of Federal Claims Bar, but both, David A. Domina and Brian Jorde enjoy, and use, practice privileges in the Court of Federal Claims. One of Domina Law Group pc llo’s current cases proceeding towards trial in the Court of Federal Claims involves a suit against the Federal Government for actions it took in eliminated access our client leased land which created a “taking”. We have sued for seven figures in money damages to address those financial affects.

A Takings Case

Cases brought against the Corps of Engineers (“COE”) on behalf of affected property owners and lessees would allege its actions resulted in a taking of land for which it must pay just compensation to those affected. Typically, the COE would obtain “flowage easements” over property they calculate may be flooded due to their management of the Missouri river flow and discharge levels. Flowage easement land is privately owned land on which the United States government has acquired certain perpetual rights, including the right to flood it in connection with the operation of lakes, rivers or dams; the right to prohibit construction or maintenance of any structure for human habitation; and or the right to approve all other structures constructed on flowage easement land. A careful review of the flowage easement pertaining to your property is critical to understand potential liability and limits of liability.

The Fifth Amendment takings clause provides: “nor shall private property be taken for public use without just compensation.”

Government-induced flooding is a recognized physical intrusion. The Court has “long considered a physical intrusion by government to be a property restriction of an unusually serious character for purposes of the Takings Clause.” Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982). However, fighting the government and proving a compensable taking has occurred is not easy.

On March 30, 2011, in a 2:1 decision, the US Court of Appeals for the Federal Circuit reversed a US Court of Federal Claims decision that had awarded nearly $6 million dollars in damages where the COE deviated from its operating plan and thereby flooded property managed by the Arkansas Game and Fish Commission. Read decision here. The Appeals Court found that because the deviations in the Corp’s release rates were temporary and therefore cannot constitute a taking. The dissenting judge vigorously disagreed with his two colleagues but that did not change the outcome.

Plan Deviation

The purpose of regulating release rates is to control the flow of the Missouri river in order to reduce adverse effects of flooding downstream areas such as Nebraskans and Iowans are now suffering from. We are investigating the release rates from the dams on the Missouri River upstream from Dakota Dunes, South Dakota for deviations from the planned rates and reasons for any deviations from the Authorized Plan.

The key issue here is not that some flooding occurred, which is typical from time to time, but the level and degree of flooding and an analysis of the decisions and factors which lead to the current elevated and destructive flooding.

In mid-April 2011 the COE held public meetings regarding the Spring 2011 Missouri River Basin Water Management plan and projections. Read the Report here. Page 30 of the Report states targets Sioux City, Iowa’s spring pulse flow limits of 41,000 cubic feet per second (CFS). The actual service flows for Sioux City as of June 1, 2011 was 99,330 CFS. On June 14, 2011 the flow rate is projected to be 150,000 CFS. The downstream flow limit for Omaha, Neb. was estimated at 41,000 CFS but as of June 1, 2011 the estimated discharge was actually at 106,153 CFS.

The ultimate questions that must be answered are:

• What is the duty of the Army Corps of Engineers to regulate to prevent flooding?
• Does flooding of property constitute a taking in the legal sense if the flood waters are simply downstream discharge, must the damage be from backwater impact, neither or both?
• How can you prove a compensable taking occurred?