Case 1:21-cv-02358-SSS Document 1 Filed 12/30/21 Page 1 of 24
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`Receipt number AUSFCC-7581658
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`IN THE UNITED STATES COURT OF FEDERAL CLAIMS
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`PECORD FARMS, INC. AND JERRY
`PECORD AS TRUSTEE OF H G
`REVOCABLE LIVING TRUST;
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` Plaintiffs,
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`v.
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`THE UNITED STATES,
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`Defendant.
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`21-2358 L
`Case No. _______________
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`COMPLAINT
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`NATURE OF THE CLAIM
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`1.
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`Plaintiffs bring their claims for takings of their land within the reach of
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`the Mississippi River by increased flooding caused by government action.
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`2.
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`Plaintiffs own property in the alluvial plain of the Mississippi River
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`(“the River”) in southwestern Alexander County, Illinois, an area that has been
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`inhabited and successfully farmed for some 200 years.
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`3.
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`The federal government has constructed levees and flood walls along the
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`Middle Mississippi River and has expressly encouraged and incentivized farming and
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`economic development along the River by maintaining and repairing these flood
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`control systems for nearly a century.
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`4.
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`State governments have also constructed levees to protect local farming
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`and other land use.
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`
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`Receipt number AUSFCC-7581658
`
`IN THE UNITED STATES COURT OF FEDERAL CLAIMS
`
`PECORD FARMS, INC. AND JERRY
`PECORD AS TRUSTEE OF H G
`REVOCABLE LIVING TRUST;
`
` Plaintiffs,
`
`v.
`
`THE UNITED STATES,
`
`Defendant.
`
`21-2358 L
`Case No. _______________
`
`COMPLAINT
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`NATURE OF THE CLAIM
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`1.
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`Plaintiffs bring their claims for takings of their land within the reach of
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`the Mississippi River by increased flooding caused by government action.
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`2.
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`Plaintiffs own property in the alluvial plain of the Mississippi River
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`(“the River”) in southwestern Alexander County, Illinois, an area that has been
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`inhabited and successfully farmed for some 200 years.
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`3.
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`The federal government has constructed levees and flood walls along the
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`Middle Mississippi River and has expressly encouraged and incentivized farming and
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`economic development along the River by maintaining and repairing these flood
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`control systems for nearly a century.
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`4.
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`State governments have also constructed levees to protect local farming
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`and other land use.
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`Case 1:21-cv-02358-SSS Document 1 Filed 12/30/21 Page 2 of 24
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`5.
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`In the aftermath of the historic 1927 flood, in southwestern Alexander
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`County, the state of Illinois and other private parties constructed the Len Small
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`Levee (“the Levee”). This initial Levee was designed on the basis of the historical
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`hydrograph of the River to withstand even extreme events of the magnitude of 1927
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`flood and was named after the Governor of Illinois at the time, Len Small.
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`6.
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`In 1943, the original Len Small Levee was damaged, and the Federal
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`Government reconstructed and expanded the Levee to provide even greater
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`protection.
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`7.
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`8.
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`Locals began calling it “the Government Levee.”
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`Plaintiffs’ land was farmed for over a century before the Levee was
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`constructed in 1927 and expanded in 1943, albeit with periodic flooding that is
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`expected in a flood plain. Cf. Arkansas Game & Fish Comm'n v. United States, 568
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`U.S. 23, 39 (2012).
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`9.
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`Throughout the life of the Levee, the land—though afflicted by some
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`flooding—was usable for farming and recreation.
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`10. From 2016 through the present, Plaintiffs’ land has been exposed to
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`severe flooding ruining its agriculture value.
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`11. While Plaintiffs land has always experienced some flooding, Plaintiffs’
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`land has never been be exposed to comparable flooding to that experienced after 2016
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`either before or after the construction of the Levee.
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`12. The U.S. Army Corps of Engineers (“the Corps” or “Corps”) has been
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`reshaping the Middle Mississippi River to facilitate navigation for the past
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`Case 1:21-cv-02358-SSS Document 1 Filed 12/30/21 Page 3 of 24
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`century. Specifically, the Corps has constructed river training structures (“the
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`Structures” or “Structures”) and conducted dredging operations in the Middle
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`Mississippi River to maintain a navigable river channel. Plaintiffs reasonably relied
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`on the Corps’ authority and experience to responsibly manage the River and have
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`collectively invested millions of dollars and tremendous efforts to maintain their land
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`and other property near the Mississippi River for its intended and customary use.
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`13. For decades, the Government pursued a policy of building structures in
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`the Mississippi River, while simultaneously funding the repair and reconstruction of
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`the Len Small Levee.
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`14. All the while, the Government denied that its structures have any effect
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`on the risk of flooding.
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`15. As a result of the Corps’ gradual but unabated addition of Structures,
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`portions of the River affecting Plaintiffs’ property now include the greatest densities
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`of dike structures, both in number and length, in the world, changing the River’s
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`hydrograph.
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`16. As a cumulative result of the Corps’ increasingly aggressive constriction
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`and manipulation of the River, the historical hydrograph of the River has changed
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`and the Water Surface Elevations (WSEs) of the River have increased for a given
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`discharge over natural levels.
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`17. The Middle Mississippi River reached a record stage at Cape Girardeau,
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`Missouri, in 2016 breaching the Levee.
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`3
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`Case 1:21-cv-02358-SSS Document 1 Filed 12/30/21 Page 4 of 24
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`18. Plaintiffs’ unprotected property is now inundated with flood waters with
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`greater frequency, for longer durations, and at unusual times of year in a manner
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`that deviates from historical flooding patterns (collectively, “increased flooding”).
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`19. The flooding caused by the Corps’ aggressive manipulation of the River
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`has disrupted and interfered with Plaintiffs’ reasonable, investment-backed
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`expectations for the intended and customary use of their land and other property.
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`20. The Corps has not obtained flowage easements nor has the Corps offered
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`Plaintiffs just compensation for the benefit that it has appropriated for public use.
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`21. The Corps’ practices have sacrificed Plaintiffs’ land and other property,
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`without compensation, for the public purpose of providing navigation on the River.
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`JURISDICTION AND VENUE
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`22. This Complaint states causes of action for taking of property and flowage
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`easements without just compensation in violation of the Fifth Amendment to the
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`United States Constitution. The Court has jurisdiction over this action under 28
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`U.S.C. § 1491(a).
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`23. Venue is proper in the United States Court of Federal Claims pursuant
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`to 28 U.S.C. § 1491(a).
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`PARTIES
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`24. Plaintiff, Pecord Farms, Inc., was deprived of the use and enjoyment of
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`its land in Alexander County, Illinois, due to increased flooding after the 2016 breach
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`in the Len Small Levee.
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`4
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`Case 1:21-cv-02358-SSS Document 1 Filed 12/30/21 Page 5 of 24
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`25. Plaintiff, Jerry Pecord as trustee of the H G Revocable Living Trust, was
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`deprived of the use and enjoyment of its land in Alexander County, Illinois, due to
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`increased flooding after the 2016 breach in the Len Small Levee.
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`HISTORICAL BACKGROUND
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`26. Until the early twentieth century, the Middle Mississippi River and its
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`tributaries were navigable only in shallow draft vessels and often only seasonally,
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`limiting the utility of the Mississippi River for transportation.
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`27. As transport and shipping needs increased, Congress determined that it
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`was in the national interest to engineer greater navigability by placing man-made
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`structures on and around the rivers.
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`28. Congress passed the Rivers and Harbors Act of 1927 (“1927 Act”), which
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`authorized certain works, including some constriction of the Mississippi River
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`channel to improve navigability.
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`29. The 1927 Act authorized establishment of a navigable channel on the
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`Middle Mississippi River 300 feet wide and at least nine feet deep from the mouth of
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`the Ohio River upstream to the northern boundary of St. Louis, Missouri.
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`30. To constrict the channel, the Corps constructed thousands of river
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`training Structures in the Rivers, literally converting these rivers into man-made
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`constructs. Throughout this history, the primary authorized purpose was the
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`facilitation of navigation, and the Corps carried out that objective using an expanding
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`toolkit of river training Structures.
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`Case 1:21-cv-02358-SSS Document 1 Filed 12/30/21 Page 6 of 24
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`31. The Corps’ engineering Structures have achieved their intended purpose
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`of facilitating navigation on the Middle Mississippi River. However, the continued
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`construction of these Structures has yielded foreseeable adverse consequences for
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`Plaintiffs.
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`THE CORPS’ GROWING RIVER MANAGEMENT AND EXPANDING
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`TOOLKIT
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`32. The purpose of river training Structures is to constrict the river channel,
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`concentrate flow, redirect sediment, and deepen and maintain the navigable portion
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`of the channel.
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`33. The Structures block and alter portions of the River’s flow area,
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`resulting in increased flow velocity in the navigable portion of the channel as well as
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`increased WSEs.
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`The Wing Dike
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`34. The primary tool to establish, deepen, and maintain the navigation
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`channel of the Mississippi River was the “wing dike,” a construction of wooden pilings
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`or rock that runs from the riverbank hundreds or thousands of feet into the channel
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`to redirect flow and sediment.
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`35. Below is a true and accurate photograph of wing dikes in the River:
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`Case 1:21-cv-02358-SSS Document 1 Filed 12/30/21 Page 7 of 24
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`36.
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`By 2016, the Middle Mississippi River contained at least 646 wing dikes or
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`wing-dike segments, with a cumulative length of 378,982 feet.
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`37. Peer-reviewed publications have linked wing dikes to large decreases in
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`flood conveyance and increases in flood levels on the Middle Mississippi River and its
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`tributaries.
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`38. The Corps has even acknowledged that the United States Fish and
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`Wildlife Service (“USFW”) “states that channel training structures have also altered
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`the natural hydrograph of the Middle Mississippi River by contributing to higher
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`WSE at lower discharges than in the past and to a downward trend in annual
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`minimum stages.”
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`39. As long as continuous records have been kept, flood stages at constant
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`discharge have increased steadily on the Missouri River and certain stretches of the
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`Case 1:21-cv-02358-SSS Document 1 Filed 12/30/21 Page 8 of 24
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`Mississippi River where Structures are prevalent. These increases directly correlate
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`with the Corps’ continuing efforts to manage the rivers.
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`40. The Government’s own research has associated both losses of channel
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`conveyance and increases in flood levels on portions of the Mississippi River and its
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`tributaries with extensive dike construction.
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`41. The Corps, however, churns out voluminous papers and reports
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`insisting on other causes of increasing floods trends and casting doubt on the
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`permanence of recent trends in the Middle Mississippi River.
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`The Bendway Weir
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`42.
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`In the 1980s, the Corps invented a new type of aggressive Structure, the
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`bendway weir. According to the American Society of Civil Engineers, “[t]otally
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`submerged stone weirs along the outside of a river bend are a new concept of river
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`training developed by the US Army Corps of Engineers.”
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`43. By 2016, at least 831 dikes or dike segments had been constructed on
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`the Middle Mississippi River, with a cumulative length of at least 472,093 linear feet.
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`44. The Corps asserted that bendway weirs better redirect the flow of the
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`river to shape the navigation channel and reduce dredging costs. According to the
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`Corps, bendway weirs “extend directly into the navigation channel underneath
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`passing tows. Their unique position and alignment alter the river’s spiraling,
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`secondary currents in a manner which shifts the currents away from the outside
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`bankline . . . [t]his results in a wider and safer navigation channel through the bend
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`without the need for periodic maintenance dredging.”
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`Case 1:21-cv-02358-SSS Document 1 Filed 12/30/21 Page 9 of 24
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`45. Whatever purported benefits the bendway weirs bring to navigability
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`and reduction of maintenance costs, they substantially increase WSEs and flooding.
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`46. Peer-reviewed publications have concluded that weirs have impacts on
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`WSE levels.
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`The Chevron Dike
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`47. Below is a true and accurate photograph of chevon dikes in the River:
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`48. At present, the Corps has built at least 23 chevron dikes in the Middle
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`Mississippi River, often in proximity to new wing dikes and other dike structures.
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`49. The Corps continues to invent new training Structures and build them
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`in the Rivers, including so-called “S-dikes,” and “W-dikes.”
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`50.
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`In 2017, the Corps recommended to Congress that they proceed with a
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`15-year construction plan to bolster more than 1,375 Structures along the Rivers.
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`Case 1:21-cv-02358-SSS Document 1 Filed 12/30/21 Page 10 of 24
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`51. The Corps has built and continues to build new dike inventions on the
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`Rivers reckless of their impact on real-world rivers and surrounding areas.
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`STRUCTURES ARE THE CAUSE OF THE INCREASED FLOODING OF
`THE MISSISSIPPI RIVER
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`52. There is widespread academic and governmental consensus that
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`flooding on the Mississippi River has increased in recent years.
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`53. Objective measures of flooding, such as river stage, show that recent
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`flooding has been more frequent and longer in duration at many locations on the
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`Rivers.
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`54. These increases are insidious, systematic, and statistically significant.
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`55. Causal mechanisms that might be responsible for magnifying flooding
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`fall into two groups: (1) upstream factors, and (2) instream factors.
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`56.
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`“Upstream factors” include climate change, basin land-cover change,
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`and dams upstream on the river or its tributaries. Proponents of climate change
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`theory propose that a warming earth could lead to more intense storms, causing
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`larger floods on rivers like the Mississippi. Changes in land cover within the
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`watershed may also alter the pattern of runoff from rainstorms, which could cause
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`larger floods. Finally, dams, such as those built on the main-stem Missouri River,
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`were designed in part to store flood waters to reduce flooding downstream.
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`57.
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`“Instream factors” include alterations of the river channel or floodplain
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`that change how floodwaters are conveyed through the river. For example, narrowing
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`of the river channel by half would significantly contribute to deeper flood waters.
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`Case 1:21-cv-02358-SSS Document 1 Filed 12/30/21 Page 11 of 24
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`58.
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`Scientists and engineers have evaluated these mechanisms that may
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`contribute to magnified flooding on the Mississippi River and Ohio River.
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`59. On the Mississippi River, research has specifically assessed the
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`combined impacts of climate change and land-cover change (“upstream factors”) and
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`found their effects on large Mississippi River floods to be de minimis.
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`60. Both statistical analyses of flood trends and climate modeling studies of
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`the upper Mississippi watershed conclude that climate change is not making the
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`largest floods larger.
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`61. Further, changes in upstream factors would increase “discharge,” i.e.
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`river flow rate measured in cubic feet per second. USGS discharge measurements
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`stretching back several decades (to over a century) show no statistically significant
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`increase in discharge for flood peaks measured at any of the stations on the Middle
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`Mississippi River.
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`62. The instream changes to the Rivers are the construction of river training
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`Structures and levees and the constriction of the river channel. Narrowing or
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`constriction of the Rivers is a direct result of Structure building, and therefore
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`Structure construction and river constriction can be assessed together as a single
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`factor.
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`63. The hydraulic impact of levees on the Middle Mississippi River has been
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`extensively studied. Levees create a “surcharge” (i.e. higher WSE) by excluding flood
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`water from the flood plain and confining flood flows to the river channel. Research
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`on the Mississippi River system shows that levee-driven increases in flood levels are
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`Case 1:21-cv-02358-SSS Document 1 Filed 12/30/21 Page 12 of 24
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`substantially less than the observed increases in high WSE levels on the Middle
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`Mississippi River.
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`Flood Impacts of River Training Structures
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`64. Extensive research has been devoted to the impact of Structures because
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`the majority of observed atypical flooding on the Mississippi River cannot be
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`attributed to other factors.
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`65.
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`Stage and discharge are the two direct measures of a flood’s impact, with
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`stage being the more meaningful of the two measures. For a property owner
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`inundated by flood waters, the duration of the flood is far more significant than the
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`flow rate of passing water.
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`66. The long-term analysis of stage measurements—unlike the study of
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`discharge measurements—shows statistically significant increases in flooding and
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`flood duration at measurement stations along the Middle Mississippi River.
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`67.
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` “Specific Gage Analysis” is another method of assessing the instream
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`factors contributing to flooding. It tracks water elevations for fixed and specific
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`discharges, thereby reducing the “noise,” or variability associated with short-term
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`weather impacts on long-term hydrologic trends. It is widely used, even by the Corps
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`in its river studies.
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`68.
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`Specific Gage Analysis has been performed for measurement stations
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`throughout the Mississippi River. These analyses confirm large increases in WSE for
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`flood conditions. Moreover, these analyses show increases in WSE precisely where
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`Case 1:21-cv-02358-SSS Document 1 Filed 12/30/21 Page 13 of 24
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`Structures have been built and little or no increase in WSE in areas with no or few
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`Structures.
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`69.
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`Statistical analysis of these specific gage trends shows that the
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`construction of thousands of feet of wing dike and chevron dikes on the Middle
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`Mississippi River has resulted in six to ten feet of increased flood levels in broad
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`stretches of the Middle Mississippi River where these Structures are prevalent and
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`up to 15 feet of increased flood levels in some locations.
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`70. Very recent advances in paleoflood hydrology have enabled scientists to
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`examine more than 500 years of flooding on the Middle Mississippi River to determine
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`the effects, if any, of climate change.
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`71.
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` While there have been small, up-and-down changes in flood stage over
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`time, there have been unprecedented increases in stage given the same discharge
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`that coincide with the Corps’ increasing navigation engineering of the Middle
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`Mississippi River.
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`72. Hydraulic modeling has also tested the impacts of Structures on the
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`Mississippi River. Using archival river survey data principally from the Corps,
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`historic digital models of the Mississippi River known as hydraulic retro-models
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`(numerical hydraulic models of historical conditions) have been created for the past
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`100 years. This hydraulic retro-modeling simulates the impact of various instream
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`changes, including Structure construction.
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`Case 1:21-cv-02358-SSS Document 1 Filed 12/30/21 Page 14 of 24
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`73. Only a small fraction of the total observed increases in flood magnitude
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`throughout the history of the Middle Mississippi River can be attributed to levee
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`construction.
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`74. The retro-modeling also shows small, insignificant, local increases in
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`flood levels attributable to growing bank vegetation.
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`75. This modeling shows that the increase in flooding is primarily
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`attributable to the Corps’ construction of Structures.
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`76. By all measures, research has shown that the impact of instream and
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`upstream factors is cumulative, meaning that each successive construction in the
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`River adds to and exacerbates flooding on the Rivers.
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`77.
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` Moreover, as sediment gradually accumulates on or around the
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`Structures, their effect on WSEs grows.
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`78. That campaign to construct new Structures and repair and lengthen
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`existing structures continues to the present day.
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`HISTORY OF FLOODING IN DOGTOOTH BEND
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`79. Periodic flooding of the Mississippi River into the alluvial plain is a
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`natural phenomenon, recorded for centuries and observed for millennia.
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`80. Natural, gentle flooding of the alluvial plain contributes to soil fertility
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`and makes the plain an attractive area for agricultural development.
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`81. Because the natural periodic flooding fertilizes the soil, farmers in the
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`alluvial plain save a substantial cost on anhydrous ammonia and other fertilizers.
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`82. On the Illinois reach of the alluvial plain is an area in southwestern
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`Alexander County known as Dog Tooth Bend.
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`83. People have made their homes in the Dog Tooth Bend area for over 700
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`years.
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`84. As early as the fourteenth century, Native Americans in the Middle
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`Mississippi region built ceremonial mounds and a village in Dog Tooth Bend.
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`85.
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`In 1809, four families from England settled and began farming in Dog
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`Tooth Bend.
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`86. By the late nineteenth century, the population of Dog Tooth Bend and
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`southwestern Alexander County had grown, and agriculture had emerged as a major
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`commercial activity.
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`87. At 10 meters (33 feet) above the Mississippi River, farms in
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`southwestern Alexander County enjoyed fertile alluvial land that was susceptible
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`only to periodic gentle flooding throughout the early part of the twentieth century.
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`88.
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`In 1927, the United States experienced the most destructive flood in its
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`history, extending across Illinois, Indiana, Missouri, Kentucky, Texas, Oklahoma,
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`Kansas, Tennessee, Arkansas, Mississippi, and Louisiana.
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`89. Property damage was estimated at $350 million dollars, equivalent to
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`approximately $5 billion dollars today. Economic losses were estimated at $1 billion
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`(1927 dollars), which was equivalent to almost one-third of the federal budget at that
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`time.
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`Case 1:21-cv-02358-SSS Document 1 Filed 12/30/21 Page 16 of 24
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`90. The flood reached 40 feet at the River gage at Cape Girardeau, and had
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`the highest recorded discharge at the time.
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`91. This catastrophic flood prompted the passage of the Flood Control Act of
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`1928, which gave the federal government authority to contain the Mississippi River.
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`This led to the eventual creation of the Mississippi River and Tributaries Project
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`(MR&T) and the construction of levees along much of the Mississippi River.
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`92.
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`Individual states also responded by constructing levees to protect their
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`citizens in the event of another flood like the unprecedented 1927 flood.
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`93. After the 1927 flood, the state of Illinois assisted in constructing the first
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`portion of a levee in southwestern Alexander County.
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`94. The levee was named after Len Small, who was the Governor of Illinois.
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`95. From time to time after its construction, the Levee was strengthened
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`and lengthened to fortify it against rising WSEs that were initially presumed to be
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`the result of land use changes.
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`96.
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`In 1943 a flood severely damaged the Levee and the Federal
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`Government reconstructed and expanded the Levee to provide even greater
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`protection.
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`97. The extended Levee became known to locals as “the Government Levee.”
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`98.
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`In 1969, the informal levee district, with state and federal assistance,
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`expanded the Levee both upstream and downstream to its current state to provide a
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`limited degree of flood protection and lessen the erosive action of the river.
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`Case 1:21-cv-02358-SSS Document 1 Filed 12/30/21 Page 17 of 24
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`99. The Levee is more appropriately categorized as a “training dike,”
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`because it “does not tie back to high ground,” as would be required to create a
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`continuous wall of protection.
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`100. Thus, since the Levee’s initial construction and expansion the land
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`protected by the Levee was always subject to backwater flooding.
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`101. The local landowners requested that the Levee not be extended to higher
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`ground at the downstream end, preferring to keep the benefits of occasional
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`backwater flooding.
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`102. The landowners also required an open system to allow for drainage
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`during the rainy months.
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`Levee Breaches and Federal Government Repairs
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`103. Throughout the twentieth century, with the protection of the levee,
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`farmers and landowners in southwestern Alexander County were not significantly
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`impacted by changes affecting the river, whatever their cause.
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`104. From 1943 to 1993, no documented Len Small Levee breach occurred.
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`105. Even when high water levels damaged the Levee, property owners were
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`able to repair it with the assistance of the federal government, which limited
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`increased flooding to isolated events.
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`106. In 1973, the Levee was damaged, and the Federal Government repaired
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`the damage.
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`107. Twenty years later, in 1993, the Levee breached when water was two
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`meters below the Levee crest due to weakening from groundhog burrows.
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`108. With the Levee gone for the first time in decades over 37,000 acres of
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`farmland was flooded.
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`109. Len Small Levee District commissioners requested the Federal
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`Government’s assistance to repair the levee.
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`110. The District’s letter to the Army Corps’ noted the additional flooding
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`potential should the Levee not be restored.
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`111. The Federal Government promptly helped repair the Levee.
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`112. Repairs were not yet completed when some of the progress was washed
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`away in 1994 during early season flooding.
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`113. The Government completely repaired the Levee in 1994.
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`114. In 2011, the Levee breached again following extensive backwater
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`flooding from the Ohio River.
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`115. The 2011 flood reached high ground and many buildings for the first
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`time in history.
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`116. The
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`local
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`levee district requested assistance and the Federal
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`Government helped repair the Levee.
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`117. In 2016, the highest stage ever recorded in the region hit the landowners
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`in southwestern Alexander County with an unprecedented flood.
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`18
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`Case 1:21-cv-02358-SSS Document 1 Filed 12/30/21 Page 19 of 24
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`118. The 48.7-foot stage of the 2016 flood was considered a 200-year event,
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`yet the discharge was nearly identical to the 1927 flood, which had a stage of only 40
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`feet.
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`119. The 2016 flood breached the Len Small Levee.
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`120. Below is a true and accurate photograph of Miller City Road in Miller
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`City, Illinois, inundated by flood waters:
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`Plaintiffs are now Experiencing Substantial and Frequent Flooding
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`121. The 2016 breach in the Len Small Levee is over one mile long.
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`122. The Len Small Levee District wrote to Army Corps of Engineers
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`requesting flood rehabilitation assistance to repair the Levee as it had each time in
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`the past.
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`123. On July 21, 2016, the Army Corps of Engineers denied assistance.
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`19
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`Case 1:21-cv-02358-SSS Document 1 Filed 12/30/21 Page 20 of 24
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`124. Plaintiffs and local stakeholders have not been able to repair the Levee
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`themselves.
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`125. Members of the Len Small Levee District had multiple meetings with
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`Federal Government officials who changed course from prior practices and confirmed
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`that the Levee would not be repaired.
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`126. For the first time, without the levee, Plaintiffs are now exposed to the
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`increased flooding brought on by the Government’s engineering of the River that had
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`gradually become the norm while Plaintiffs had enjoyed the Levee’s protection.
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`127. This flooding is now substantial and frequent and has upset all
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`investment backed expectations of Plaintiffs.
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`128. The flooding is now of an entirely different character than the flooding
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`on the River in its earlier state before the Levee was constructed.
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`129. In 2017, 2018, 2019, and 2020 without the Len Small Levee, Plaintiffs
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`experienced multiple flooding events preventing the planting of crops or causing
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`complete crop loss.
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`130. Since the Levee breach in 2016 most farmers in Dog Tooth Bend have
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`not had a successful farming season.
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`131. If not for the Corps’ Structures, Plaintiffs would still be able to use and
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`enjoy their land.
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`132. The unnatural and now inevitably recurrent flooding is directly
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`attributable to the Corps actions.
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`20
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`Case 1:21-cv-02358-SSS Document 1 Filed 12/30/21 Page 21 of 24
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`THE CORPS’ ACTIONS HAVE INTERFERED WITH PLAINTIFFS’
`REASONABLE INVESTMENT-BACKED EXPECTATIONS OF THEIR
`PROPERTY
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`133. The atypical flooding caused by the Corps’ recent construction practices
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`has imposed a severe burden on Plaintiffs’ land and other property, profoundly
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`disrupting and interfering with Plaintiffs’ reasonable expectations of the intended
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`and customary use of their property.
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`134. The Corps’ Structures have caused and will continue to cause flooding
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`events of longer durations, which have significantly impaired the use of agriculture
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`and recreational property since the 2016 Len Small breach and will continue to do so.
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`135. Plaintiffs have lost crops, have not been able to farm or can no longer
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`farm due to the atypical flooding.
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`136. Many Plaintiffs have not been able to access their property due to the
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`increased flooding.
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`137. Plaintiffs have made significant investment of time and resources in the
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`land and other property now devastated by the Corps’ actions. Plaintiffs made these
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`investments in reliance on the long history of farming and habitation in the area and
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`the expectation that the Corps would manage the Rivers in a manner that would not
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`alter the traditional uses of that land.
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`138. Plaintiffs’ land has never been exposed to comparable flooding to that
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`experienced in the successive years after 2016 either before or after the construction
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`of the Levee.
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`21
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`Case 1:21-cv-02358-SSS Document 1 Filed 12/30/21 Page 22 of 24
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`CAUSE OF ACTION
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`The Corps Took Plaintiffs’ Property without Just Compensation in
`Violation of the Fifth Amendment of the United States Constitution
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`
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`139. Plaintiffs incorporate by reference and reallege as though fully set forth
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`herein, each and every allegation as set forth in the preceding paragraphs of this
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`Complaint.
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`140. Plaintiffs have a legally recognized property interest in their land and
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`other property located in Alexander County, Illinois, and the economic benefits
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`associated with that property.
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`141. Plaintiffs had distinct, reasonable, investment-backed expectations that
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`their property would only be subject to flooding in line with the historical hydrograph
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`of the Middle Mississippi River.
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`142. Increased flooding has significantly interfered with that property
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`interest and upset Plaintiffs’ reasonable, investment-backed expectations on a
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`temporary and permanent basis.
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`143. The increased flooding is and has been a direct and foreseeable result of
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`the Government’s gradual construction in the Rivers.
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`144. The Government’s continued construction of Structures has been for the
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`purpose of achieving a public good; namely, to facilitate navigation on the Rivers.
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`145. Plaintiffs’ property has been subjected to increased flooding that would
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`not otherwise have occurred. To the extent that some natural flooding would have
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`occurred in the absence of the Corps’ Structures, it has been severely increased and
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`aggravated by Corps’ activities.
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`22
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`Case 1:21-cv-02358-SSS Document 1 Filed 12/30/21 Page 23 of 24
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`146. By continuing to aggressively constrict and train the river with
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`Structures, the Corps caused, and continues to cause, increased flooding of Plaintiffs’
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`property, interfering with Plaintiffs’ reasonable, investment backed expectations.
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`147. The Corps knew or should have known that its constriction of the River
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`by Structures would result in increased flooding of Plaintiffs’ property absent
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`protection of a Levee.
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`148. Such increased flooding of Plaintiffs’ property was the direct, natural,
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`probable, and foreseeable result of the Corps’ actions.
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`149. The increased flooding of Plaintiffs’ property has interfered with
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`Plaintiffs’ property interests for a substantial period of time and has permanently
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`destroyed Plaintiffs’ property.
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`150. The Corps took flowage easements over Plaintiffs’ property without just
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`compensation.
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`151. The Corps took Plaintiffs’ property for a public purpose.
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`152. The Corps’ actions are attributable to the United States.
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`153. The United States government has not provided Plaintiffs with just
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`compensation for its taking of Plaintiffs’ property.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiffs pray that this Court enter judgment on their behalf,
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`against the Defendant, adjudging and decreeing that:
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`23
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`Case 1:21-cv-02358-SSS Document 1 Filed 12/30/21 Page 24 of 24
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`A. Defendant took Plaintiffs’ property without just compensation in violation
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`of the Fifth Amendment of the United States Constitution;
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`B. Judgment be entered against the Defendants and in favor of Plaintiffs for
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`compensation for the property right taken from them, together with the costs
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`of suit, including reasonable attorneys’ fees and interest;
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`C. Plaintiffs be awarded just compensation for their deprivation and losses;
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`D. Plaintiffs have such other, further, and different relief as the case may
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`require and the Court may deem just and proper un
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