June 26, 2023

MTO Secures Appellate Victory for Missouri River Basin Landowners in Historic Fifth Amendment Takings Dispute

Munger, Tolles & Olson secured a major appellate victory for farmers and landowners seeking just compensation under the Fifth Amendment for the taking of their farmlands by recurring flooding along the Missouri River caused by massive river alterations made by the U.S. Army Corps of Engineers.

As lead appellate counsel to the farmers, MTO secured a favorable decision from the U.S. Court of Appeals for the Federal Circuit, which affirmed the trial court’s decision to award damages for land flooding and overturned the trial court’s decision not to award damages for crop losses resulting from the government’s actions.

“Today’s decision is an important step in securing just compensation for our clients,” said MTO partner Don Verrilli. “We are very pleased that the Federal Circuit affirmed the merits of our Takings Clause arguments, and even more gratified that it recognized that the trial court had failed to give our clients the full measure of relief that they deserve.”

In a unanimous decision, a three-judge panel for the Federal Circuit found that the United States violated the Fifth Amendment prohibition on the taking of private property without just compensation by implementing the Missouri River Recovery Program—a 2004 river management program that altered water flow of the Missouri River, resulting in recurring flooding on plaintiffs’ farmlands. The court of appeals rejected the government’s argument that the trial court lacked jurisdiction and that it had misapplied causation principles and the “relative benefits” doctrine to plaintiffs’ Fifth Amendment claims. The panel also agreed with MTO’s argument that the trial court erred in ruling that the 2004 change in water flow did not cause flood damage in 2011.

The U.S. Army Corps of Engineers filed the appeal following a 2020 ruling in Ideker Farms, Inc. et al. v. United States of America—a case in which the U.S. Court of Federal Claims found that the U.S. government owed three bellwether plaintiffs over $7 million in collective damages for flood damage to their property. As appellate counsel, MTO defended that decision before the Federal Circuit and launched a cross appeal aimed at overturning the trial court’s rulings that crop damages caused by flooding were non-compensable and that the government was not responsible for flooding in 2011.

The Ideker Farms case was filed in 2014 by hundreds of landowners who own property from Kansas to North Dakota and who collectively seek hundreds of millions of dollars in just compensation.

In addition to Mr. Verrilli, the MTO team included Elaine Goldenberg and Ben Horwich.

Read more about the appellate ruling.

The lawsuit has garnered news coverage in Law360, Associated Press and Reuters.

About MTO’s appellate practice

Munger, Tolles & Olson’s appellate and Supreme Court practice is recognized as among the best in the nation and routinely handles the highest-stakes matters before the U.S. Supreme Court, U.S. courts of appeals, and state appellate courts. Our lawyers have secured victories in cases of historic importance and have won ground-breaking appeals around the country on a wide range of subjects, including antitrust, securities, intellectual property, cross-border disputes, and regulatory matters.

Learn more about our appellate practice.