Farmers Win Battle Against Army Corps of Engineers, Fight Not Over

03:58PM Aug 13, 2018
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It’s a battle against Mother Nature for farmers in northwest Missouri. It’s that battle Rushville, Mo. farmer Lanny Frakes knows all too well. As he stands outside his barn that shows hints of age and scars from years of weather extremes, he knows farming comes with both triumphs and tribulations. While the risks are high farming the fertile bottom ground nestled next to the Missouri River, Frakes also knows the rewards – when the weather cooperates- can be great.

However, it’s those risks that seemed to become more powerful over the years, with farmers like Frakes battling more than just the weather.

“Since 2004 we’ve had more problems,” said Frakes. “The river doesn't carry the water that it used to, it comes up really fast.”

While Frakes noticed the vast change in not only the way the river flowed, but the way it rose without warning, he didn’t realize what was causing it until nearly a decade later. It’s a change that was caused by more than just Mother Nature.

“I think early on I didn't really know for sure what was causing it,” said Frakes. “I just thought there's something different. Other farmers thought the same.”

It’s 2004 that isn’t a coincidence. 2004 is the same year the U.S. Army Corps of Engineers created changes to the Master Water Control Manual – changes directed by Congress.

We just noticed the river really came up past the height of the river level and stayed up longer - much longer - and we couldn't discharge our waters,” said Frakes. “We just saw a lot of changes.”

He said since 2004, he’s witnessed the Missouri River water level jump over 10 feet in just 24 hours. There have been several other instances where the river hikes up seven to eight feet in just a matter of hours, instances that he says are all documented.

Frakes said it’s not just water spilling over the banks that’s caused problems on his farm ground, but the water creeps underground, drowning the crop from the bottom up.

“When people think of flooding, I think a lot of people think about water going completely over the top of the levee or breaching the levee and gushing in,” said Frakes. “For us, losing crops can be just a matter of saturated soils where we can't plant that land or if the land is planted and the river levels come up, then it damages the crop. We're not able to spray it, care for it, and it ends up reducing yields.”

Frakes said he’s had instances where he was never able to plant a crop, forcing him to file for “prevented planting.”

“We just couldn't plant the land,” said Frakes. “It was time to plant and the soil was so saturated we couldn't get over it with the machinery to planted.”

Frakes said other years, the losses show up in diminished yields. A sour result for a year’s work when the weather cooperated.

“We've also had years where the yields very much reduced, where maybe a normal corn yield may be 160 to 180 bushels per acre, and we might not make half of that, just due to the crop stunted from wet feet.”

It’s that case that caught the attention of Polsinelli, a law firm based in the Kansas City area. The firm filed a case against the U.S. Army Corps of Engineers for extensive property damage caused as a result of flooding along the Missouri River. The plaintiffs included 372 farmers, landowners and business owners, one of which was Frakes.

“I'm a fourth-generation farmer on this land,” said Frakes. “We have a 37-year-old son and his family that farms with us, and I want him to have the opportunity to farm this land to the best of his ability and not be constrained by how the Corps runs the river,” said Frakes.

It’s that motivation that fueled the plaintiffs case.

“We started the investigation into this in 2013, and for over a year before we filed the lawsuit, we investigated this because we wanted to make sure, before we went in the lawsuit against the federal government and allege that they had taken our client's property, that that we had a viable cause of action,” said Seth Wright, Polsinelli Law Firm.

Wright said the basis of the lawsuit was that the farmers, landowners and business owners had experienced atypical and recurrent flooding along the Missouri River for several years, and it was threatening their livelihood; a claim Senior Judge Nancy Firestone ruled had merit. In March, Firestone ruled the U.S. Army Corps of Engineers was responsible for extensive property damage caused as a result of recurring flooding.

“Our clients were very pleased with the result,” said Wright. “It was a victory for them in a day many of them had waited for, for over a decade. And it was good for what they had thought all along: that the Missouri River had changed.”

The Judge’s ruling completes the first phase of the lawsuit. However, phase 2 is the piece that will determine if the plaintiffs will get compensated for their losses, and if so, how much. Wright said that “just compensation” was the basis of the lawsuit, not negligence.

“It's their [USACE] constitutional right - based upon the Fifth Amendment of the United States Constitution - the government can't take your private property without just compensation,” said Wright. “It's like eminent domain - the government can come in, they can take your property, but they have to compensate you for it, and that's all we're asking for in this case.

It’s the compensation piece that is set to be considered later this year. While a date hasn’t been determined, early indications show phase 2 will begin in October. Polsinelli thinks it’s not a matter of “if” farmers get compensated.

“We'd like to think right now it's a matter of when they will get compensated, and some of these clients have flooding dating back to 2007,” said Wright. “So, for over a decade, they waited for this compensation from the federal government. And it's time.”

As a plaintiff in the case, Frakes also hopes to be compensated for years of lost yields, crops and dollars.

“I think when I signed up as a plaintiff in this case I expected to be compensated for the losses and for the damages that had been done by the changes that had been made by the Corps,” said Frakes.

However, it’s not just the financial piece that is a motive for Frakes. He also wants to see change – change that will take an “Act of Congress” to create.

“What I hope for now is that Congress and the Trump administration recognize this and make some changes at the congressional level to make flood control once again the top priority,” said Frakes.

“I think that's what our clients would really like to see, as well is a change in that priority back to flood control,” said Wright. “. “They’ve been active in talking to their congressmen, congresswomen and senators, and I think what our lawsuit can do is educate them.”

It’s change that’s been a mission for Congressman Sam Graves (R-Mo.). Prior to the lawsuit, Graves says he’s been fighting to get the priority changed for the U.S. Army Corps of Engineers.

“The fact that we have spent literally hundreds of millions of dollars trying to carry out various activities, which includes land acquisition and construction of these shallow water habitats to theoretically help the recovery of species like the pallet sturgeon, piping plover, and we've seen absolutely no substantial no gain from it,” said Graves. “Nobody can point to any to any recovery that has taken place yet.”

Graves said he’s not only reintroduced legislation to improvement management of the Missouri River, but he’s also working with the Energy and Water Development Subcommittee, asking for the Missouri River Recovery Plan to be defunded for fiscal year 2019. He says fish and wildlife shouldn’t be the priority for a management plan; he thinks it should be subordinate to navigation and flood control. He said the recent court ruling is helping draw attention to the need for change.

“Finally, with this ruling, we're getting some real interest in this,” said Graves. “The ruling is going to it's going to make all the difference in the world because obviously it as the Corps was complicit in in several of those floods.”

It’s a battle over flooding that farmers and landowners hope will create waves of change.