Since May 2011, Domina Law Group pc llo has been working with landowners
and concerned individuals and investigating potential claims against the
U.S. Army Corps of Engineers for property damage to homes, land and businesses
along the Missouri river.
We have and continue to research legal options and issues regarding the
current flooding, likely future flooding, and possible remedies available
to residents and affected land and property owners to recover monetarily
for their losses.
Domina Law Group pc llo lawyers David A. Domina and Brian Jorde have held
a series of meetings discussing legal issues and answering your questions.
The first meeting was in Niobrara, Neb., Saturday, June 4, 2011. Approximately
200 people participated in that discussion. |
Norfolk Daily News Article.
Our most recent meeting was in Tekamah, NE on December 9, 2011. In the
past 6 months we have travelled up and down the Missouri and have been
compiling information critical to potential future legal action against
If you have not yet contacted us regarding your losses created by the historic
water flows along the Missouri river and you live in South Dakota, Nebraska,
Iowa, Kansas or Missouri we
encourage you to contact us today.
Please read below for more information and updates.
To Victims of the 2011 Flood:
The following thoughts about matters related to the Missouri River flood
are offered for general information. Like all matters on our website,
these postings do not create an attorney-client relationship or entitle
a website reader to rely on our observations or comments.
1. Our attention continues regarding potential claims against the Corps
of Engineers for matters associated with the 2011 flood. The flood’s
duration, its unmistakable relationship to extraordinary weather events,
and uncertainty about the extent of damage which will only be known after
the water subsides, prevents any final decisions about how to proceed
at this point.
2. The Corps recently announced, on its website, a right for persons to
file federal tort claims for damages. BE CAREFUL ABOUT DOING SO. In fact,
we recommend against tort claims. The United States has not waived its
sovereign immunity for suit for most matters involving floods or regulation
of the dam system affecting the Mississippi River and its tributaries.
This means tort claims have a very low level likelihood for success, except
in extraordinary circumstances where the Corps’ palpable neglect
was not associated with regulating the dams but may have been associated
with some other aspect of the Corps’ duties, such as conscious decisions
to sacrifice some properties to save others. These judgments may amount
to takings under the Fifth Amendment which are compensable. They probably
are not compensable torts.
3. We continue to gather facts, hear from many of you (and hope to hear
from more of you and more from each you) and to study the law which is
extremely complex in this area.
Attention: Please click here to read the latest update and discussion as of December 23, 2011
General Legal Information:
For the Summary Handout provided at June Niobrara, NE Meeting
US Court of Federal Claims
Most cases seeking compensation from the United States and the Corps of
Engineers must be filed in the
U.S. Court of Federal Claims, located in Washington D.C., if they involve claims of "takings"
of property by the government, either through direct action, or as a consequence
of what the government does that has permanent consequences. Some types
of claims for short term injuries, called torts, can be filed in U.S.
District Court. The government cannot be sued like anyone else - special
procedures are involved.
Most likely to have a chance of winning in the Claims court you will have
to allege a physical taking due to the flood waters overtaking your property.
Takings can be temporary or permanent. For a basic overview of Takings examples
Few Midwestern lawyers are admitted to the U.S. Court of Federal Claims
Bar, but both,
David A. Domina and
Brian Jorde enjoy, and use, practice privileges in the Court of Federal Claims. One
of Domina Law Group pc llo’s current cases proceeding towards trial
in the Court of Federal Claims involves a suit against the Federal Government
for actions it took in eliminated access our client leased land which
created a “taking”. We have sued for seven figures in money
damages to address those financial affects.
A Takings Case
Cases brought against the Corps of Engineers (“COE”) on behalf
of affected property owners and lessees would allege its actions resulted
in a taking of land for which it must pay just compensation to those affected.
Typically, the COE would obtain “flowage easements” over property
they calculate may be flooded due to their management of the Missouri
river flow and discharge levels. Flowage easement land is privately owned
land on which the United States government has acquired certain perpetual
rights, including the right to flood it in connection with the operation
of lakes, rivers or dams; the right to prohibit construction or maintenance
of any structure for human habitation; and or the right to approve all
other structures constructed on flowage easement land. A careful review
of the flowage easement pertaining to your property is critical to understand
potential liability and limits of liability.
The Fifth Amendment takings clause provides: “nor shall private property
be taken for public use without just compensation.”
Government-induced flooding is a recognized physical intrusion. The Court
has “long considered a physical intrusion by government to be a
property restriction of an unusually serious character for purposes of
the Takings Clause.”
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982). However, fighting the government and proving
a compensable taking has occurred is not easy.
On March 30, 2011, in a 2:1 decision, the US Court of Appeals for the Federal
Circuit reversed a US Court of Federal Claims decision that had awarded
nearly $6 million dollars in damages where the COE deviated from its operating
plan and thereby flooded property managed by the Arkansas Game and Fish
Commission. Read decision
here. The Appeals Court found that because the deviations in the Corp’s
release rates were temporary and therefore cannot constitute a taking.
The dissenting judge vigorously disagreed with his two colleagues but
that did not change the outcome.
The purpose of regulating release rates is to control the flow of the Missouri
river in order to reduce adverse effects of flooding downstream areas
such as Nebraskans and Iowans are now suffering from. We are investigating
the release rates from the dams on the Missouri River upstream from Dakota
Dunes, South Dakota for deviations from the planned rates and reasons
for any deviations from the
The key issue here is not that some flooding occurred, which is typical
from time to time, but the level and degree of flooding and an analysis
of the decisions and factors which lead to the current elevated and destructive flooding.
In mid-April 2011 the COE held public meetings regarding the Spring 2011
Missouri River Basin Water Management plan and projections. Read the Report
here. Page 30 of the Report states targets Sioux City, Iowa’s spring
pulse flow limits of 41,000 cubic feet per second (CFS). The actual service
flows for Sioux City as of June 1, 2011 was 99,330 CFS. On June 14, 2011
the flow rate is projected to be 150,000 CFS. The downstream flow limit
for Omaha, Neb. was estimated at 41,000 CFS but as of June 1, 2011 the
estimated discharge was actually at 106,153 CFS.
The ultimate questions that must be answered are:
- What is the duty of the Army Corps of Engineers to regulate to prevent flooding?
- Does flooding of property constitute a taking in the legal sense if the
flood waters are simply downstream discharge, must the damage be from
backwater impact, neither or both?
- How can you prove a compensable taking occurred?