David A. Domina, Brian E. Jorde, and Jennifer Niemier participated in presentations at meetings for flood victims during the week of December 5, 2011. The meetings were held at Tekamah and Niobrara, Nebraska. Domina Law Group pc llo was invited to make presentations at each meeting. Domina spoke at the request of meeting sponsors.
Noting that finding a legal solution to help with damages resulting from the 2011 flood is hard, David Domina mentioned to the three groups that, “There are no television ads by lawyers asking to handle your flood cases.” Domina continued, “That’s because this is a very difficult subject involving complicated proof and complicated legal issues.”
Meeting participants heard Domina explain the doctrines of sovereign immunity, legal limitations on the right to sue the federal government, special limitations in federal law protecting the United States against liability for floods, and the value, or lack of value, at trying to assess fault for the floods. The Takings Clause of the US Constitution’s Fifth Amendment, guarantying just compensation to persons whose property is taken by the federal government for a public purpose, formed the focus of Domina’s presentations.
“The federal courts have carefully distinguished between ‘takings’ and ‘torts,’” Dave Domina said. As a result, specific “elements of proof” exist and require a property owner seeking a recovery to establish not just an injury from one flood, but a likelihood of inevitably recurring floods, resulting in a permanent change in condition affecting one’s ability to use property.
The need for hydrological evidence, probably using Corps data as its basis, but proving changes in weather patterns, the ages and silt levels of the dams, and especially changes in management of the Missouri River dam structures, is essential. Factors influencing the likelihood that flooding will recur are numerous. They include, among others:
Changes in management criteria as a result of congressional
or other governmental action
Sedimentation changes caused by governmental action
A schedule requiring that the dams and system be scoured with
High and Strong Flows
Elevation of the “normal” inflows forecasting data due to significant elevations
of inflows during the past three year
Climate change
Frequency analysis changes to calculations of recurrence intervals.