A decision in an important lawsuit involving Mississippi River flooding in southwest Mississippi is in the discovery phase and likely won’t be going to trial before June 2021.
Then Secretary of State Delbert Hosemann filed the lawsuit against the federal government in February 2019 in the U.S. Court of Federal Claims on behalf of several southwest Mississippi school districts over the flooding of 8,000 acres of 16th section land, which was set aside by the federal government for school district use.
In February, U.S. Judge Elaine Kaplan dismissed a motion by the U.S. Army Corps of Engineers to dismiss the lawsuit, which allowed it to continue. Right now, the proceedings are in the discovery phase, where the evidence such as expert testimony and documents that will be used in a possible trial is shared among all parties. Expert discovery in the flood case will end on June 7, 2021. A week later, the parties will convene for a scheduling meeting for filing motions for summary judgement or putting together a pre-trial schedule.
The lawsuit is based on the Fifth Amendment of the U.S. Constitution and its takings clause, which says that the government can’t take private property without compensation. The plaintiffs say that the loss of use and value of their land amounts to a taking under the Fifth Amendment and demands compensation.
The plaintiffs contend that the Corps of Engineers, through its Mississippi River and Tributaries Project, has exacerbated flooding on the river above the Old River Control Structure in Louisiana. The lawsuit says the Corps of Engineers’ efforts to straighten, channelize and restrict the river with artificial levees have made floods both longer in duration and higher since the 1973 Mississippi River Flood.
The Old River Control Structure manages the flow between the Mississippi and Atchafalaya rivers. It allows 23 percent of the Mississippi's flow into the Atchafalaya, which would capture the flow from the Mississippi River if not for the ORCS.
The 1973 flood nearly broke through the ORCS, which sends between 23 and 25 percent of the Mississippi River’s flow down the Atchafalaya. This would’ve shifted the Mississippi’s channel to the Atchafalaya basin with catastrophic results for the maritime industry in Baton Rouge and New Orleans. Without the ORCS, the Atchafalaya would capture the flow from the Mississippi River and become the river’s new channel to the Gulf of Mexico.
According to the lawsuit, the flooding has damaged land along the river called the batture, which is alluvial land between the levees, and reduced the value of timber and recreational resources. The school districts who are plaintiffs in the lawsuit include Natchez-Adams, Claiborne and Wilkinson counties and the plaintiffs are seeking at least $25 million in damages.
Also joining the lawsuit and alleging similar damages are several property owners with batture holdings in both Mississippi and Louisiana.
The solution to the flooding problem, critics say, is to divert more of the amount of flow from the ORCS located southwest of Natchez near Angola, Louisiana into the Atchafalaya River.
Two 2018 studies — one released by the Woods Hole Oceanographic Institute and another by LSU hydrology professor Yi-Jun Xu — provide evidence for those who say the Corps needs to divert more of the flow of Mississippi River down the Atchafalaya River during floods to alleviate the problem of water backing up behind the ORCS.
The Woods Hole study showed that flood events on the river have worsened because of efforts primarily by the Corps of Engineers to tame the river with levees and other . The LSU study says the river could alter its course to the nearby Atchafalaya River with disastrous results because of increased silt deposits, which restrict water flow down to the Gulf. It also said the flooding events above the ORCS are increasing in both frequency and severity.