Missouri Judge dismisses part of lawsuit over Birds Point

CAPE GIRARDEAU, Mo. (AP) -- A federal judge has dismissed a large portion of a class-action lawsuit brought by more than 140 southeast Missouri farmers whose land was damaged when Birds Point levee was intentionally breached last year. On Friday, Judge Nancy B. Firestone of the U.S. Court of Federal Claims in Washington granted the government's motion to dismiss the first two counts of the lawsuit, in which the farmers are seeking millions of dollars from the U.S. government. The parts Firestone dismissed involve a "takings claim," which would require the plaintiffs to show that there would be frequent, inevitable flooding in the future because of the U.S. Army Corps of Engineers decision to destroy the levee in order to protect homes upriver. The Southeast Missourian reported that the May 2, 2011, breach was only the second time the Corps has activated the 130,000-acre floodway that sits in Mississippi and New Madrid counties. "The first flood took place in 1937. Allegations of two floods separated by nearly 75 years are not enough to support an inference of frequent and inevitably recurring flooding," Firestone said in her written opinion. Cape Girardeau lawyer J. Michael Ponder, who is representing the plaintiffs, said despite Firestone's ruling, he thinks his clients eventually will get the reparations they seek. He said the judge has yet to consider an amended complaint filed April 23, which seeks compensation for the government's failure to pay the plaintiffs for damage caused by sand and gravel deposits, in violation of their easements. Ponder said the motion, which is a "breach of contract claim," could get the farmers as much as a takings claim. He said the damage caused by activating the floodway was more severe than what was allowed under flowage agreements paid to the property owners. Published: Tue, May 15, 2012