Judge says Mississippi lawsuit over damage to public lands can continue

Published 7:36 am Saturday, February 8, 2020

Motions to dismiss a lawsuit that could bring millions of dollars to school districts in southwest Mississippi failed in federal court Thursday.

Federal Judge Elaine Kaplan denied the federal government’s efforts to dismiss a lawsuit filed in February 2019 by then Secretary of State Delbert Hosemann on behalf of students in school districts in Southwest Mississippi.

Hosemann was elected Mississippi Lt. Governor in November 2019.

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The lawsuit filed in the United States Court of Federal Claims, contends that the federal government unconstitutionally took 8,000 acres of public school lands.

The state seeks at least $25 million in damages from the federal government under the U.S. Constitution’s Fifth Amendment Takings clause which requires the government to pay compensation when it takes property for public use.

If the case is ultimately decided in Mississippi’s favor, Hosemann said in 2019, any money from damages would be distributed to affected school districts. Hosemann did not specify how the money would be divided.

The allegations stem from what the State of Mississippi argues is artificial flooding caused by the Old River Control Structure, a Mississippi River water control project by the U.S. Army Corps of Engineers.

“(Thursday), the United States of Federal Claims ruled in favor of the state and denied the federal government’s motion to dismiss Mississippi’s valid claim for relief from the unconstitutional taking of thousands of acres of 16th section land,” Hosemann said in a news release.

Sixteenth section land is property set aside when the state was formed to benefit public schools. Revenue, including from oil leases and hunting leases on the land, are used to support schools.

Affected school districts named in the lawsuit include, Natchez-Adams School District, Claiborne County School District and the Wilkinson County School District.

“When we filed this litigation, I said that when the public trust land is destroyed unlawfully, children are the ones who suffer,” Hosemann said. “The only responsible action is for the federal government to make our school districts whole.”

Launched in the 1950s, the U.S. Corps of Engineers sought to change the natural course of the river to the Atchafalaya River by diverting more water down the Mississippi River using the Old River Control Structure.

The goal was to prevent damage to cities in Louisiana, including Baton Rouge and New Orleans.

“The project failed to account for the inevitable destruction of Mississippi land,” the news release said.

The state contends the Old River Control Structure has caused increased silting of the river which has led to artificial flooding. The flooding has caused deterioration of wildlife habitats and other problems on land along approximately 100 miles of the Mississippi River, the lawsuit contends.

The government made three arguments in support of its motion to dismiss. First, the federal government alleged the state failed to “pinpoint” a specific action taken by the federal government that constituted a taking of property. Second, the federal government argued that the state did not take into account other projects by the federal government that provided flood reduction benefits. Third, the federal government argued that the loss of land was not a true taking of property.

In her ruling, Kaplan found all three arguments to be unpersuasive and allowed the lawsuit to continue in federal court.