Floodway long a source of legal contention

The story of the Birds Point-New Madrid levee is of a struggle between landowner rights and the government's idea of the greater good, a debate that goes back to the days immediately following the devastating floods of 1928.

More than 80 years later, property owners prepare to fight the federal government all over again -- much as they have done in the courts for the better part of the last century.

But a prevailing argument is that the farmers in the floodway knew what they were getting into when they signed on the dotted line, that the U.S. Army Corps of Engineers years ago purchased the right to breach the levee and flood those 130,000-plus acres should the need arise -- as it did when the river gauge at Cairo, Ill., reached 61.72 feet. The notion is that the landowners were paid -- some say handsomely -- either outright or received compensation for easements in the floodway.

A lawsuit filed Tuesday in a federal court in Washington, D.C., takes issue with that idea, arguing that the landowners' Fifth Amendment rights prohibiting a government taking without just compensation have been violated by the corps' breaching of the levee system in Mississippi and New Madrid counties. The argument, according to attorneys representing some 25 claimants in a lawsuit that seeks class-action status, is that the "Corps never obtained the necessary flowage easements to allow execution of the 1983 version nor any subsequent versions of the Corps' plan."

A corps historian says there has long been dispute over what the government owns and when it owned it.

From the start, landowners in the floodway opposed the provisions of the 1928 Flood Control Act, the federal law establishing the floodway system following the floods of 1927.

U.S. Rep. Dewey J. Short, Missouri's "silver-tongued orator" who staunchly opposed President Franklin Delano Roosevelt's New Deal, was just as critical of the floodway, saying his constituents "do not want to see Southeast Missouri made the dumping ground to protect Cairo, much as we love Cairo."

A Mississippi River plan would have been expensive, pegged at $872 million. The commission recommended the inclusion of four floodways, but those floodways were all situated below the mouth of the Arkansas River, according to a white paper written by Charles Camillo, historian for the Mississippi River Commission and the Mississippi River and Tributaries Project.

"To provide protection for Cairo, at that time a lavish and bustling river town with a population exceeding 15,000, the Commission recommended raising the level of levee protection to 70.4 feet on the Cairo gage," Camillo wrote.

Maj. Gen. Edgar Jadwin, the chief of engineers, rejected the commission's report largely because of the costs. He submitted his own plan, in part downgrading the stage of 55 feet on the Cairo gauge, according to the historian. Under project flood conditions, the levee would overtop and crevasse, thereby putting the floodway into operation.

Many residents from within the alluvial valley favored the Mississippi River Commission plan over the Jadwin plan, Camillo wrote. Among the supporters were interests in Southeast Missouri who owned land within Jadwin's proposed Birds Point-New Madrid Floodway.

The flood of 1927 forced a change in engineering policy, but a controversy emerged over implementing the floodways, Camillo said.

"Residents within the floodways were ill-prepared for that reality, which assured that private land once protected by levees would now be subject to inundation to reduce flood stages elsewhere in the valley," he wrote. "Under the Jadwin plan, the Birds Point-New Madrid floodway was designed to do just that."

'Adequate remedy'

President Calvin Coolidge had considerable control over the implementation of the 1928 act, mandating that easements be obtained from at least 50 percent of the property owners before the corps cut down the levee and operated the floodways. By the flood of 1937, the last time the corps had to activate the floodway in Mississippi and New Madrid counties before this week, the federal government still hadn't hit Coolidge's target, Camillo said.

"People were not thrilled with the price of the flowage easements or they wanted the land purchased outright. Much of it got tied up in court," he said.

In the 1929 case of Kirk v. Good, a property owner said the floodway would compromise any future sale of his land. The judge ruled in favor of the government, saying if the floodway was ever operated, then the property owner would have "complete and adequate remedy for compensation."

With the floodway now in operation, property owners and farmers are seeking that remedy.

Compensation

The government between the 1930s and early 1970s paid floodway property owners anywhere between $1 and $100 an acre for easements, according to Camillo. Other land, particularly property at the northern edge of the levee, was purchased. Farmers in some areas of the floodway enter a lottery for the right to rent the valuable land, in much the same way the U.S. Forest Service holds drawings for timber land rights, according to David Sirmans, district counsel for the U.S. Army Corps of Engineers Memphis District.

Asked about the binding nature of the easement agreements, Sirmans said they are "what you can expect in accordance with the terms of easements, but the terms do vary in some instances."

The contention of the attorneys for the plaintiffs suing the federal government is that in some cases there are no existing easements and in others there are questions concerning the language.

Larry Larson, executive director of the Madison, Wis.-based Association of State Floodplain Managers, said the technique is quite common worldwide. In China, Larson said, the government has intentionally destroyed levees to flood farmland and homes to save industrialized cities downstream. Larson said China of late has recognized the moral weakness of such destruction.

One corps official said the four floodways along the Mississippi River remind him of Soviet Union-era collectivization, taking individual property for the greater good.

Maj. Gen Edward Markham, chief army engineer, testified before the House Rivers and Harbors Committee following the corps' breaching of the Birds Point-New Madrid levee in 1937 -- by today's standards an unsophisticated detonation using sticks of dynamite. Markham seemed to regret the decision to blow the levee.

"I am now of the opinion that no plan is satisfactory which is based upon deliberately turning floodwaters upon the homes and property of people even though the right to do so may be paid for in advance."

mkittle@semissourian.com

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