Farmers along the Missouri River won a mass action federal lawsuit last December against the Army Corps of Engineers for land damages they say are traceable to the agency’s management of the river.
Plaintiffs alleged the Corps violated the Fifth Amendment by taking measures to protect endangered animals on the river without compensating landowners. The case additionally accused the agency of creating a pattern of flooding along the river between 2007 to 2014 that damaged farmland.
The case secured just over $10 million in damages for its three bellwether plaintiffs, who were used to represent the cases of nearly 400 other farmers looking to sue the Corps. It also opened the door to a second class-action lawsuit filed in late 2020 that features dozens more farmers. Lawyers expect to score hundreds of millions of dollars in payments for growers from northern Nebraska to Leavenworth, Kansas.
These legal proceedings are the latest chapter in a decades-long showdown between environmental and business interests on the Missouri River. Since the first steamboat chugged along its waters, control of the river has boiled down to one question: should the government focus on preserving the river’s wildlife or the businesses and communities alongside it?
So far, there is no clear winner in this battle for the Big Muddy.
In 2000, The U.S. Fish and Wildlife Service began pushing the Corps to better protect the river’s endangered animal species under the Endangered Species Act. The agency issued an opinion identifying three species — two birds and one fish — whose survival was being threatened by manmade changes to the river over the past several decades.
Nearly 20 years later, it’s not clear if all of the Corps’ resulting environmental efforts are paying off. That question will take many years to answer. Researchers say the river’s natural qualities — and the behavior of one stubborn fish — make monitoring any potential progress more complicated. Farmers are still hoping for an unlikely return to previous flood prevention policies on the river, a dream that in some cases is driving their participation in legal action against the Corps.
Fish in the fields
After the catastrophic floods of 2019, Mike Bean’s 680 acres of Missouri River farmland became a kind of museum to life on the Big Muddy. Refrigerators, buoys, RVs, and an aquarium’s worth of fish washed up with nine feet of floodwater.
“There was carp. There was catfish. There was all sorts of stuff,” he said, pointing to one of several ditches the water carved in his cornfields. “They got trapped in here, and then they couldn't get out.”
Two years later, their skeletons dot the property. They are not Bean’s only keepsake from the floods. Several tons of topsoil ended up settling on his land from farms between Sioux City and Nebraska City, which now needs to be broken up and redistributed.
“I had my own, but when it goes away up there, he's farming just sand because his soil is gone,” Bean says, gesturing vaguely north. “So, you know, I'm fortunate that I can survive and have a crop ... this is the best soil you can buy.”
Despite the lucky strike, Bean still needs to shell out big money for the equipment and labor to relevel his fields with the charcoal-black dirt. He watches an excavator claws its way through the soil, which a bulldozer drags off into the distance.
“The sand removal is $217,000, the releveling [is] $644,000, so right here, you're talking $800,000,” he calculates. “This equipment’s like $175 an hour per piece of equipment. It's not a cheap date.”
The U.S. Department of Agriculture will pay 75% of that cost, leaving Bean with a $200,000 loss. Crop losses, which are only partially paid by insurance, will make that number bigger.
Expensive damages like these — and the hope of change on the river — are why he signed onto a class-action lawsuit against the Army Corps of Engineers last December.
A Fifth Amendment issue
The case builds on Ideker Farms, Inc., et al v. U.S.A, a predecessor case that argued in taking steps to protect the endangered least tern, piping plover, and pallid sturgeon in the early 2000s, the government took an illegal easement against landowners along the Missouri River.
Dan Boulware, a lawyer based in Kansas City, is the architect of that argument.
“Well, the two birds are now off the endangered species list,” he deadpanned. “But when you compare the losses that have happened with the citizenry, it's a real disaster … and that's why you have the fifth amendment, that you can't take private property without compensation.”
Judge Nancy B. Firestone, a judge on the U.S. Court of Federal Claims agreed with that take in December 2020, granting hundreds of farmers the right to payments from the Corps.
“Now, many people never thought we would win this case,” he recalled. “So they didn't join. Well, once that decision came out, people were coming out of the woodwork calling us.”
Boulware and dozens of other farmers saw the ruling as a green light for a new lawsuit that’s nearly identical to the first, but this time targets a much broader swath of farmers along the river. The statute of limitations ran out at the end of 2020, so his team had two weeks to find more growers for a new class-action case.
Boulware filed just before New Years’ Eve with dozens of new plaintiffs, including Michael Bean. If this new case is successful, farmers from northern Nebraska to Kansas City — including people not named in the lawsuit — could pocket a quarter of their land value, collectively resulting in hundreds of millions in damages from the Corps.
But this new case is currently on hold because both sides plan to appeal the Ideker decision. The government is appealing their loss while Boulware takes issue with the court’s decision to deny farmers compensation for crop losses related to flooding.
“She denied the recovery of actual damages, in other words, the loss of crops, loss of grain bins, damage to homes, damage to irrigation equipment,” he explained. “That's wrong, that's wrong, that's wrong. So, we’ll be appealing that.”
‘Hard To Know’
Yet there isn’t any indication the lawsuit alone will deliver what many farmers want — a reversal of environmental policies they claim are at the root of their damages over past decades.
“If you ask our clients they'll say, ‘It's not just about the money, we need this flooding to stop, because otherwise, we're not going to be able to farm along the river,’” Boulware said. “So what's going to make the changes happen? We can't demand in our lawsuit or have the court order that changes be made. All we can seek is money.”
Boulware tosses the ball into Congress’ court. Lawmakers are ultimately in charge of how the Corps is legally obligated to operate, but Boulware says it would be years before any changes would take effect.
“They have already tried to change the management of the river in some respects, but they can't with what they did, because it's going to take years to take the river back to where it was,” he said.
Plus, researchers are still trying to understand if some of the Corps’ attempts to support endangered populations worked, which critics of the agency have been quick to point out.
At the heart of the contention is the pallid sturgeon. Long and lean, like a dinosaur met a swordfish, the ancient fish poses a stubborn challenge to anybody looking for a swift reversal in Missouri river policy. Its role in the battle for control of the Missouri River was decades — if not millennia — in the making.
“It's a very rare fish, and it lives at the bottom of a deep and very muddy river … and there’s so little we know about it,” said Dr. Robert Jacobson, chief of the U.S. Geological Survey’s River Studies Branch. “It's very hard for us to actually just observe what this fish does.”
After spending millions of years in the Missouri River, the U.S. Fish and Wildlife Service says the species declined in the 1960s due to changes made to the river by humans, including dam construction and channelization. Jacobson says changing the flow of the river made it easier for barges to travel and expanded nearby agriculture, but suspects that also threatened reproduction among pallid sturgeon.
Experts are considering several explanations as to why. One currently stands out.
“Because this navigation channel is so efficient — it’s designed to transport sand — the dominant hypothesis is that it's also too efficient for those larval fish to get out of the main current,” Jacobson said. “They're getting stuck in the main channel and being transported way downstream, they can't get off to the side of the channel when they need to start feeding … so they're starving instead of surviving.”
Over the last twenty years, the Corps has tried out several ideas to grow the river’s population, including building more shallow water habitats and adding tens of thousands of hatchery-raised pallid sturgeon to the river. Adult fish from hatcheries are faring decently in the river while their babies seem to be struggling.
“The idea here is that if you get enough of a population in the river, then they can start reproducing on their own,” he explained. “So far, we haven't seen that happening. We haven't seen that there's been enough of them there, or they haven't been successful enough.”
Waiting on science
It will take time and diligent sleuthing to parse out what efforts to benefit pallid sturgeon are working, which aren’t, and any possible solutions. In addition to being notoriously elusive, the fish doesn’t reproduce for 12 to 18 years.
“The Fish and Wildlife Service is in this for the long term, they're looking at generations, at least several fish generations before they get to the point where they can say, ‘Yeah, this has been successful,’” he said.
“From a scientific point of view, we're not at all surprised that proof doesn't exist, because there's so much uncertainty about this system in trying to detect the fish in the system and evaluate how well [policies are] contributing to the population.”
There’s been momentum in recent years to test theories more aggressively. Jacobson says any results will provide fact-based, unbiased information, which stakeholders and government agencies will hopefully use to navigate tensions between the river’s interests.
Still, answers — and any resulting policy — likely won’t come as soon as farmers like Michael Bean want them.
“I think [the Corps’] ought to get back to the basics and do what their job is, and I think they ought to be held accountable to people,” he said. “And after 2011, we've heard all the excuses, that this is a once-in-500-year flood. Really? Eight years later, it happens again.”
The Army Corps of Engineers declined to be interviewed for this story due to ongoing litigation, but in a written response, the agency said it would continue to follow federal law in managing the river.
“The Missouri River Recovery Program's activities are designed to ensure the Corps' operations are in compliance with the Endangered Species Act and other environmental requirements,” a representative wrote via email.
“As the Corps has done since the first listing of a species in the Missouri River Basin in 1985, we will continue to work closely and transparently with the U.S. Fish and Wildlife Service and the basin stakeholders to minimize any potential impacts of MRRP activities to stakeholder interests.”
Looking out across the fields, Bean says a settlement from the Corps won’t make up for all of his losses. But for many farmers who believe the government’s management of the river threatens their future, the money is better than nothing.
Yet despite not having a long-term solution to hold onto, Bean wouldn’t dream of selling his land. His tenant farmer is off in the distance, his tractor a pop of green against the barren land. He’s preparing to plant soybeans for the first time since 2018, a victory despite the stress of the recovery.
For a moment, it takes the edge off accepting a stalemate with his rival at the bottom of the river. The battle over the Big Muddy continues.
Follow Christina on Twitter: @c_c_stella