Missouri River Flooding 2011

Flood suits winnable attorney tells owners

Wednesday, December 14, 2011 1:30 PM CST

Written by: Mark Jackson

Courtesy of:  Burt County Plaindealer

There may be a light at the end of the tunnel for area landowners seeking payment from the government for damages suffered from last summer's flooding. Although the tunnel is really long and the bulb isn't very bright, still, it's there.That was the good news for the nearly 50 landowners who attended a meeting at City Auditorium on Friday.

Area landowners Scott Olson and Lloyd Olson invited Omaha attorney David Domina to provide some direction for producers seeking relief from the costs incurred with repairing their land. Domina said the federal government can't be sued because it caused a flood, for example, or because it made a mistake in operating the mainstem dams or for miscalculating the amount of runoff. Governments are protected from lawsuits by a standard called sovereign immunity. The government can give up its immunity in certain situations if it chooses to, but it takes a specific act of Congress to do so. Domina said the government has not given up its immunity in this case.

"The law is very clear," he said. "If you find that it happened because someone was stupid or foolish, or they did it for environmental purposes, you still can't sue. The U. S. government hasn't given up its immunity." What it can be sued for is taking something it didn't intend to take. Domina said the process is called inverse condemnation. "I don't think it can happen any other way," he said. "You don't have to prove fault, you have to prove government action. That's much easier." But it's nowhere near easy Domina said the key to any legal case will be proving the likelihood of recurrence-how likely is it that the property will flood again because of the government's actions.

"The data that will prove that is 100 percent in possession of the Corps," he said. "It is far too expensive to recreate." It's likely to be expensive to interpret, too. Domina said the Corps can provide the data, but once it is received it has to be interpreted. That would involve hiring an independent consultant and creating models based on the Corps' data. Depending upon how well various computer systems work together, it could cost over a $1 million to interpret. The cost, he said, is likely to force landowners to work together to fund the interpretation with the results being shared by everyone who takes part. Percival, Iowa, farmer Leo Ettelman said he attended the meeting for the same reason the others did, namely, to see what could be done. "We need to get everybody to make a big push," Ettelman said. "Not just Nebraska or Iowa, but everybody."

Domina suggested forming a membership-driven organization to raise the funds and hire a hydrologist and a lawyer.

Ettelman said just such a coalition has been started in southwest Iowa called Responsible River Management. "It has grown, but we haven't had time to get up this way."

Domina said if the group does hire an engineer to study the hydrology data, "don't use a public employee or a university guy from the area. There are too many pressures on them."

In order to prove recurrence, Domina said, it may require some owners to prove the river changed its course. "You are not likely to win on the scars of a one-time event."

If a case can be developed, it would be filed in the U. S. Court of Federal Claims. The case would be heard by a judge, not a jury and any trial would be held where the injury occurred. Because of geographic proximity, cases could be consolidated, but that isn't the same thing as a class action.

Domina estimated a case could take five years to make its way through the system. Should the judge rule in favor of a landowner the owner would receive a one-time payment for the difference in the value of the property before the taking and after. Domina stressed that damages will not be the cost of the cure, only the difference in value. Interest on the damage would accrue from the time of the event. If the award is over $1 million it would have to be approved by Congress. "They can't deny it," he said, "but they can influence the timing."


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