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Farmers sue over levee breach

Agriculture.com Staff 05/03/2011 @ 3:36pm

With a few small, bright orange explosions set against a backdrop of the black of night, the death warrant for thousands of acres of farm land in southeastern Missouri was signed Monday night.

Just hours later, attorneys representing the owners of much of the area's farm ground -- as well as 90 homes in the area that was flooded when the Birds Point Levee was breached Monday night by the U.S. Army Corps of Engineers to protect the city of Cairo, Illinois -- filed a class action suit alleging the government violated the affected farmers' property rights protected by the 5th Amendment of the Constitution.

"In the process of breaching the levee, the U.S. Army Corps of Engineers also destroyed, or is in the process of destroying, 90 households and more than 100,000 acres of the country's richest farmland," says attorney J. Michael Ponder of Cook, Barkett, Ponder & Wolz in Cape Girardeau, Missouri, in a report released Tuesday. "This occurred despite the fact that the Corps lacked the easement over the affected property in the floodway. What these property owners and farmers are seeking is just compensation for the land and livelihood they have lost -- possibly forever or for decades."

A report indicates the class action complaint charges that the action violated the "takings clause" of the 5th Amendment which bars the government from taking private property without due process of law. The complaint asserts that the Corps did not have easements over property in the floodway that are required before the Corps could be allowed to breach the levee at Birds Point. As a result, property owners are due compensation for the illegal taking of their property and violation of their constitutional rights.

Large tracts of land in Mississippi and New Madrid Counties in Missouri were inundated with water flowing at a rate of 550 feet per second, utterly destroying everything in its wake, including acres of farmland for corn, wheat and soybeans, says co-counsel Benjamin D. Brown of the Washington, D.C., law firm of Cohen, Milstein, Sellers & Toll. "The river was allowed to scour away large sections of land, which will leave huge holes, silt and deposits of sand and gravel on formerly productive cropland," he says. "This land may never recover from this destruction."

At the time the levee was breached, acreage in the affected area was selling for between $4,000 and $6,000 an acre. Corn prices were about $6.75 a bushel and the land was producing about 200 bushels an acre. Wheat was selling for between $8 and $9 a bushel and the land was producing about 75 bushels an acre. Soybeans were selling for between $12 and $14 a bushel and the land was producing about 70 to 75 bushels an acre.

The Corps of Engineers' own estimates place damage to the property at Birds Point at more than $300 million. The complaint names 14 farming operations and their owners as plaintiffs.

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