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Second phase of river-flooding trial to go virtual

After more than a year and a half of postponements, the second-phase trial in a long-running dispute pitting farmers along the Missouri River against the federal government will take place this summer, using a virtual format rather than in person.

In an April 14 hearing conducted by telephone, Senior Judge Nancy B. Firestone of the U.S. Court of Federal Claims granted a motion from the plaintiffs, who are led by Ideker Farms Inc. of St. Joseph, allowing the case to proceed to trial with the parties appearing remotely. Firestone also set a July 20 trial date.

The lead attorney for the plaintiffs, R. Dan Boulware of Polsinelli in St. Joseph, said the government argued that the trial should be postponed indefinitely, which his clients opposed. He said the plaintiffs are happy with Firestone’s decision.

“We’re pleased with that because we wanted to get it tried this summer, and it looks like we’re going to,” he said.

Dan Boulware

Boulware

Boulware said the plaintiffs believe that using videoconferencing technology is the best option to proceed as long as the COVID-19 pandemic continues without the discovery of a vaccine to counter it.

During the trial, each side will have 30 hours to argue their case before Firestone, Boulware said. He anticipates the trial will run for about two weeks, as opposed to the four-month first phase of trial, which ended in 2018.

To prepare for a trial held virtually, Boulware said Firestone asked the parties to conduct de bene esse depositions — depositions that can stand in for live witness testimony — before the trial.

“You don’t hold anything back when you depose the other side,” he said. “You better get your licks in because that may be the testimony offered at trial. All in all, we were fully agreeable to what she wanted to do. I told her we didn’t want any undue delay and we were flexible.”

The case is considered a bellwether case for the Fifth Amendment issues it raises.

The plaintiffs are a group of more than 350 landowners along the Missouri River from Missouri to the Dakotas.

They assert that flooding of their land, caused by a 2004 change in policy by the U.S. Army Corps of Engineers to protect wildlife, amounted to a “taking” under the Takings Clause of the Fifth Amendment, which required the government to compensate landowners.

In March 2018, after the first phase of trial, Firestone ruled mostly in the plaintiffs’ favor, finding the Corps was responsible for flooding along the river. The plaintiffs have estimated they could receive damages of $300 million.

In the second phase of the trial, the government is set to present its defenses, and the plaintiffs will make their arguments for damages.

Other landowners along the river who are not parties to the suit are following it closely to see if they also will be able to seek damages as the river continues to flood on an annual basis.

Brent Allen, an attorney in the U.S. Department of Justice Environment and Natural Resources Division in Washington, D.C., is representing the government. He did not respond to a request for comment.

The case is Ideker Farms Inc. et al. v. United States of America, 1:14-cv-183.

Coronavirus crisis

This item is part of Missouri Lawyers Media's free coverage of how the COVID-19 pandemic has affected the legal community.

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