By property damage attorney Gary Burger, who is barred and practices in the state of Missouri, with Burger Law.
A Federal Court found that the US Army Corps of Engineers’ management of the Missouri River since 2004 caused flooding that damaged the properties of landowners along the river and that the management and resulting damage was effectively an unconstitutional taking of the property of those landowners.
So, what is a taking? “A Taking is a Constitutional claim that arises under the Fifth Amendment and requires showing that the actions of the government resulted in an individual being deprived of their property unjustly and without compensation,” said Gary Burger, a property damage attorney with Burger Law in St. Louis, MO.
Takings happen all the time, more commonly at the state level. One of the most common forms of “taking” is when a landowner is forced to sell or hand over property for a new highway”, said Burger. Those types of takings are allowed, provided that the landowner is fairly compensated and the request is reasonable.
However, as evidenced here, takings can occur even when the property taken is not taken for use by the government. It can also occur when a landowner’s use and enjoyment of the property is eliminated due to the actions of the government or its agency.
In this lawsuit, the plaintiffs claimed that the management style employed by the Corps of Engineers — which favored environmental protection over flood avoidance — resulted in the flooding of their properties that reduced or eliminated their ability to use and enjoy those properties.
The Agency argued that it was impossible to show that its actions were the cause of the flooding and that any connection between the steps taken by the agency and the flooding suffered by the plaintiffs was too remote, if it existed at all.
In this case, the court ruled in favor of the plaintiffs, finding that previous rulings supported the possibility that even remote actions could set off a chain of events that led to the taking in question. Here, the court found that the agency’s focus on encouraging environmental protection over flood avoidance led to the flooding of the properties in question and that such flooding was a reasonably foreseeable result of the agency’s steps.
Takings claims are incredibly complex and require a thorough analysis of the actions of the government and the damage claimed. If your property is subject to a partial or full takings action, you should have it reviewed by an attorney well-versed in these matters.