Delta flooding lawsuit looks promising
Don Barrett is a small-town Mississippi lawyer with a punch felt across the country. The Lexington lawyer has an immensely successful track record of winning big judgments in courts across the country. Now, he’s handling the case he has always dreamed of -- a billion-dollar case on behalf of Mississippi and the Mississippians he loves. He thinks it’s going well.
If he’s right, thousands of landowners with property in the west part of the state could be getting cash compensation from the federal government under the federal “takings” laws.
Takings laws forbid the federal government from taking your land without just compensation.
The lawsuit, which includes the state of Mississippi as a plaintiff, argues the federal Corps of Engineers is deliberately flooding east Mississippi land in order to prevent flooding in more prosperous areas along the Mississippi in Louisiana.
The case is pretty easy to understand. Seventy or so years ago, experts realized the Mississippi River was about to divert from its historical path through Baton Rouge and New Orleans. An alternative route down the Atchafalaya River basin was half as long and twice as steep. Sooner or later, Mother Nature was going to reroute the mighty Mississippi. The movers and shakers of this country realized that would be a disaster. There was a trillion dollars in ports, oil refineries and infrastructure around the Mississippi River at Baton Rouge and New Orleans. They couldn’t let the river divert.
So, Congress authorized the corps to build the Old River Control Structure 35 miles south of Natchez in 1963. It was a marvelous engineering feat. It works by diverting 70 percent of the Mississippi to New Orleans and only 30 percent down the Atchafalaya River.
Only one problem. By channeling and controlling the river, the silt inevitably built up on the river bottom, raising the water levels of the river. The water had to go somewhere. It went into Mississippi, flooding 550,000 acres. Over time, the flooding has gotten worse. A flood that might happen once every 15 years is happening every year, destroying the usefulness of the land for farming, ranching, drilling or hunting.
Barrett partnered with Cuneo Gilbert & Laduca, LLP, a D.c.-based advocacy firm with broad experience in federal litigation. At the hearing, founding partner Jonathan Cuneo told the judge, “Congress and the corps didn’t do anything wrong. But the public shouldn’t bear the cost.”
In other words, the Congress’ attempts to save a trillion dollars of infrastructure at an engineering cost of $14 billion made perfect sense. And it made perfect sense to implement a plan that would eventually cause upriver flooding. That land was one-thousandth of the value of the ports and refineries.
This is a classic takings case. The Fifth Amendment of the United States Constitution forbids the federal government from taking someone’s property for a public good without fairly compensating them. As a result, there is an entirely separate federal claims court system to hear these cases. The case law is well established and the Mississippi landowners have a great deal of legal precedent on their side.
Lt. Gov. Delbert Hosemann is very upbeat about winning. “I’m feeling pretty comfortable about it. We’re fixing to get paid.”
“They basically turned 23 percent of Wilkinson County into a reservoir. I’m pleased we filed a lawsuit. The secretary of state has taken it over now but you can assume I will continue to be involved. We will prevail in that litigation.”
In addition to the flooding lawsuit, Mississippi is also suing the corps over the release of fresh water from the Bonnet Carre spillway which has killed fish, shrimp and oyster beds in the Gulf.
In a telephone interview, Barrett discussed the case in detail. Below are excerpts from the conversation:
“We’re very pleased with the progress of the case. Discovery deadline is June of 2021 and the trial will probably take place in the fall.
“We started off with the understanding that the Department of Justice doesn’t settle cases. When you sue the Corps of Engineers, the only way you’ll get it is when a court tells them that it’s a debt that has to be paid. That’s just policy. And we understand that. It’s fine. But it’s incumbent on us to push it forward to a trial quickly commensurate with what we have to do to get ready.”
Barrett was pleasantly surprised when the Takings Court agreed to hold the preliminary hearing in Natchez. The judge ruled on the spot from the bench in favor of the plaintiffs. That was most unusual and
perhaps bodes well for the ultimate success of the case. After the ruling, the court instructed the two sides to come up with bellwether cases.
A bellwether is a case that the court and the parties select to test their arguments, with the goal of moving the overall litigation towards resolution. The term comes from the bell the lead sheep in a flock would wear around its neck.
“So, we said we wanted the state of Mississippi and Lake Mary since those are the most developed cases. After that, the government can pick four or five and I’m sure we’ll agree to them. And we did that and came up with a representative group of plaintiffs up and down the river.
“The parties are cooperating. The plaintiffs always cooperate. They’re trying to get something. Defendants generally obfuscate and delay. That’s the typical way civil litigation operates. The government
has not been doing that so far. To our knowledge so far, the government hasn’t tried to hide anything. We’ve requested documents and gotten them. They haven’t turned down anything on privilege grounds. I thought they would use COVID as an excuse, but they’ve not.
“We’re excited because we’ve got our experts close to complete with their reports. We’ve needed this time. Our experts are academicians not professional testifiers, so they had to do it when they had time between classes and their other university responsibilities. That’s taken longer than we thought so the extra time has been great for us.
“In any kind of major cases like this there is the fear of the unknown and fear of the known. Maybe the judge doesn’t like you. Or another court somewhere else puts out a bad opinion that would affect you. Or that the judge won’t set hearings. All those sorts of bad things that could happen, none of that is happening. Everything we’ve needed, so far we’ve been
able to achieve.”
Barrett expects the trial to last two or three weeks. “The jurisprudence is really strong for us. The things we are finding in the obscure literature that the corps has done has turned out to be 100 percent consistent with what our experts tell us are the problems over there.”
It’s not a class action lawsuit, but the bellwether rulings set a precedent to make it much easier for similar cases to piggyback on the bellwether rulings, speeding up following cases. “Each person has an individual claim, but the bellwethers determine whether the basic claim of liability is correct. That aspect of the suit would be settled and future cases just need damage computations.”
Landowners who have been affected by the flooding need to get on board. Barrett is too busy with the trial to hustle additional clients, but he urged damaged landowners to contact him and avoid any statute of limitation or notice problems that would stymie their claim.