A court ruling in 2018 shifted the future of America’s longest river away from ecological restoration. But was the science behind its decision accurate?
BY ROBERT LANGELLIER | THE NEW TERRITORY ISSUE 10 (in print November 2020)
Scott Olson brought his plane down on Interstate 29 just north of the exit for Honey Creek, Iowa. Other than a riven black crack gaping along the center strip, the asphalt held. The rest of everything was empty: On both sides of an island of asphalt, a hell of water blew over cropland, half-submerged irrigation wells and grain bins cracked like eggs. For four miles ahead and six miles behind, the interstate was closed. Olson opened the cockpit door, releasing a wave of nicotine-laced air, and stepped out. A reporter tried not to vomit. “It looked like you needed some air,” Olson said, gazing out over the lost commerce. Olson, a registered Democrat who doesn’t believe in human-caused global warming, just successfully sued the U.S. Army Corps of Engineers for causing floods like this. The case leaned heavily on controversial science. “Sad, isn’t it?”
Viewed from a plane, or on a physical map, it seems painfully obvious where you shouldn’t be farming. A valley floodplain looks like a dry river waiting to fill up. But the Missouri River valley is gargantuan. In places the floor is 18 miles wide. Once you enter it, you’re subject to various wetlands, scours, channels, chutes and oxbows such that it might be impossible to even reach the river. When it floods, river sludge washes out roads and all but liquefies the valley, making it literally beyond human reach.
Olson’s farm and auction company, Lee Valley Enterprises, sits right on the Missouri River floodplain near Tekamah, Nebraska. As Olson brings his plane into the airport, you can see his row crops, like many farmers’ crops, stretching to the water’s edge.
“It’s a land grab,” he said, referring vaguely to environmentalists. “They want all this land back to nature, and they’re using the Endangered Species Act to do what they’re doing to flood this land and take this land back away.”
In high school, instead of playing sports, Scott and his brother Randy would buy land for $1,000 an acre and farm it after class. In a few years, they’d make enough money to buy more acreage, and a little more. Now, four decades later, they own 3,000 acres. Among their tools are a Rogator chemical dumper, a 31-row John Deere that plants eight acres in one shot, and a 14-yard sediment scraper that, when hitched behind a tractor, drags silt and sediment to regrade land scoured in floods.
Ten years ago, Olson said, the river changed. The Missouri flooded valley farmers between Omaha, Nebraska, and St. Joseph, Missouri, in 2007, 2008, 2010, 2011, 2013 and 2014, making farming virtually untenable in the most fertile land in hundreds of miles. On March 5, 2014, Olson and 371 other plaintiffs filed a class-action lawsuit called Ideker Farms, Inc. v. The United States, named for lead plaintiff Roger Ideker, blaming the Corps for causing those floods. Their case is that the Corps, under pressure from environmentalists, de-engineered the river, breaking down a carefully constructed gutter in order to save endangered species.
The case pitted two titans — Big Ag and the world’s most powerful civil engineering organization — in a fight for the future of Missouri River management. Had the Corps won, it could have begun transforming the Missouri from the continent’s largest ditch to a more natural waterway. It didn’t.
The case, in the briefest non-technical terms possible, rested on what happens to dirt and sand in the river. Since 2004, the Corps has been restoring segments of riverbank to its floodplain, carving away edges from the 800-mile-long ditch to recreate diverse river depths and speeds and thereby diverse habitat for endangered species. It’s a small step in what’s necessary to save a fraction of the wildlife devastated by the past century of alterations for the benefit of agriculture and barge traffic.
Farmers believe the sediment carved off the river walls has settled at the river bottom, creating a hydraulic speed bump, raising the riverbed and causing the river to flood with less water. The Corps argues that that doesn’t make any sense. Muddying the scientific waters, both sides forewent actual field data in court in favor of firing computer models of river hydrology at each other, basically predicting through programs what was happening to the Missouri. In February 2018, Judge Nancy Firestone ruled in favor of the plaintiffs, declaring that, except for the historic flood of 2011, the Army Corps of Engineers is liable for the floods. The ongoing case, so enormous and sluggish that it’s largely escaped media attention, has moved on to Phase II, where Judge Firestone will determine how much the Corps owes each plaintiff.
From a park abutting Olson’s land, he can see Deer Island, a two-mile-long strip of river that is one of the Corps’ prize reengineering projects at the center of Ideker. From a channelized bank, the Corps dug out a side chute and numerous sandbars in the river. For the Corps, it’s an Endangered Species Act-compliant strip of watery land. For farmers, it’s a flood risk, slowing the water down on its way to the Mississippi. “Whatever they release up north has to go south, and it can’t flow through to the south as fast as what it should,” Olson said. “It’s like plugging half the bathtub drain.”
The pallid sturgeon, as much as anyone in the Army Corps, launched this whole dispute. The pallid sturgeon is a sort of ghost-dinosaur fish, a 70-million-year-old myopic apex predator from the Jurassic that lurks at the bottom of the Missouri River. It wears body armor, its nose looks like a shovel, its whiskers are long and fleshy, and its mouth works like a vacuum cleaner. It has struggled to reproduce for the past 50 years. A hatchery in Yankton, South Dakota, helps keep the species on life support.
“They evolved in this big sand-based river,” said Gerald Mestl, a former fisheries biologist for the Nebraska Game and Parks Commission. “They were totally suited for the environment they lived in. They have very little eyes. They don’t need their eyes to feed in the Big Muddy. It was a very turbid system.”
The pallid sturgeon was listed as the Missouri’s only federally endangered fish in 1990, creating an existential and legal challenge for the Corps. The whole goal of the engineered Missouri — a deep and fast ditch — is antithetical to the fish’s existence.
There is significant evidence in favor of Olson and the farmers. In 2009 alone, for example, the Army Corps dumped 4.8 million tons of sediment from restoration works into the river over a 100-mile stretch. That’s the equivalent of dropping the Great Pyramid of Giza into the Missouri River. In addition, half of the highest flood levels recorded in the plaintiffs’ stretch (the Missouri River from Bismarck, North Dakota to Kansas City, Missouri) have occurred since 2006 in counties where the Corps has done river restoration. As of 2014, the Corps had performed 1,697 dike notches, 63 dike lowerings, 39 side-channel chute actions, 20 revetment chute actions, 14 backwater actions and three channel-widening actions. In the early 2000s, when the U.S. Fish and Wildlife Service was trying to force the Corps to comply with the Endangered Species Act, the Corps resisted for years, fearing it would increase flooding.
So a case that lasted four years leaned on one tenet. A question so apparently simple as “What happens to dirt in the water?” is now worth $300 million, the future of a river and a 70-million-year-old fish.
To understand how river sedimentation works, you might first ask the man whose livelihood depends on it.
Hermann Sand & Gravel, located at the end of a mile-long dirt river road, is the smallest of five dredging companies on the Missouri River. The ground itself at Hermann Sand & Gravel is eponymous, at the center of which rises an elevated brown double-wide office that looks very much like a drought-beached barge.
Steve Engemann, a barge captain and dredger with kind, drooping eyes, runs the company. His dredge lowers a 12-inch suction pipe to the bottom, sucks up 300,000 tons of sand a year, and takes them to land for sorting. Engemann and his family have pulled up sand from the same site since 1978, which begs the question of how he hasn’t dug a hole to China by now.
Imagine a sand dune in the desert, he said. Imagine sand blowing off the top of a dune, and over an extended time-lapse, the dunes would move across the desert like ocean waves. The Missouri River works similarly. On its bottom, tiny sand dunes flow downriver, only instead of wind currents moving them, it’s water currents.
“When we dredge, there’s this alluvial flow of sediment that’s moving through the system,” he said. “If we did no dredging on the Missouri River, 14 million tons of sand would go to St. Louis. So the river is going to move it through the system whether we take it or not. That’s hard for people to understand, but that’s the design of the Missouri River. It’s like a conveyor belt for sand. It’s a self-scouring river. You can’t out-dredge it. It keeps filling in.”
So if Engemann’s boat sucks out 10,000 tons of sand in a week, he simply floats it a couple hundred feet upriver and waits a week for the hole to fill itself in. And then he starts over.
In the 20th century, America built the continent’s largest reservoir system on the Missouri River. Combined with the channelized riverbed below it, it is the largest single engineering project in the U.S. It makes the Panama Canal look small. Dams receive and regulate half of all the water flowing down the Missouri to the Mississippi, mostly in the Dakotas and Montana. The lower half is left to the vagaries of climate, sending forth as much water as God chooses. In early March 2019, the Great Plains northwest of St. Joseph were still impermeably frozen from a hard winter.
Starting on March 12, a record-shattering quantity of rain fell onto a parking lot the size of western Europe, which flushed every drop of it, 11 million acre-feet, into Iowa, Nebraska and Missouri. The Niobrara, a tributary, blew its Spencer Dam to oblivion, dumping tons of river ice, buildings and sheet metal into the Missouri’s Gavins Point Dam. Where the Platte River meets the Missouri in the Omaha suburbs, a rush of water blasted through the levees, carving out 62 feet of earth four football fields long. Three people died in the March floods, and hundreds of farmers were inundated by levee breaks, overtoppings and seepages. According to the decision in Ideker v. the United States, all of that was the fault of the man about to take questions.
In Nebraska City, John Remus, chief of the Army Corps’ Missouri River Basin Water Management Division, stood before nearly 200 Nebraska and Iowa farmers filing in to confront him, ready to tell them he would flood them again, and soon. In the room was a lot of camo, some of it military, and armed police. Representatives from Sen. Chuck Grassley, Joni Ernst and Ben Sasse shuffled through notes.
One by one, farmers berated Remus, who did his best to defend the Corps’ actions. Donette Jackson stood up first:
“The launch of the (restoration) project marks the moment Corps ceased to be an organization dedicated to flood control and became instead an extension of the environmentalists through the Fish and Wildlife Service. The dam system’s design of flood control has been repurposed to serve an environmentalistic dream of an untamed river, to reclaim the floodplain.”
The meeting’s intensity built with each speaker. Finally, a man stood up in the crowd, visibly shaking, demanding to know why the Corps didn’t warn farmers that the Platte would flood.
“That is, uh, a Weather Service forecast,” Remus said, turning to a portly National Weather Service bureaucrat accompanying him, who stepped up.
“It’s a good question,” the man said. “The way we come up with the outlooks is we run 34 years of precipitation and 34 years of temperatures per model. So we go from, if I get my math right, 1979 to 2012. We run those historic temperatures and precips through our model for about 30 days. We run those 34 years of precipitation, 34 years of temperatures through. That gives us 34 hydrographs, 34 possible outcomes over the next nine days. And we rank those crests that come from those 34 events. And what happened in March, I would wager we probably had a 5% chance of having major flooding. There’s always a chance that we would see a major flood on the Platte. But it wasn’t a 50% chance, and that’s when we mark it. I hope that answers your question.”
“Maybe it’s time you put the computer away and look at what’s going on!” a woman yelled, the audience erupting in clapping behind her.
For the farmers, this is the Army Corps standing at the altar and making a science-based argument to the faithful. This is the lived experience versus the statistic, anecdote versus science — in a way, an encapsulation of the lawsuit.
Scott Olson, who drove down from Tekamah, stood and took the mic at the front of the room.
“I went down the river on the other side and came back on the other side. I stopped in Rock Port, Missouri, on Monday afternoon. I was the only person there. The only person there,” he said, choking up. Rock Port saw some of the worst of the flooding. “Sorry. Just think of the commerce that — ” He paused, emotional. “Argh. Think of the commerce that is lost, the dollars. You guys have all seen pictures of the grain bins. You guys have got grain bins like that. The corn’s gone. The soybeans are gone. The homes are gone. Feed’s gone.”
In one of the back rows of the room, Marian Maas, a Nebraska Wildlife Federation board member with distressed gray hair, sat quietly.
“They’re hard decisions,” Remus told me afterward. “That’s why Congress is asking us to make those decisions. And we should not shrink from that responsibility. Even if it means we may be sued or we might get yelled at in a meeting, our job is to make those decisions. If there’s liability, if there’s court cases, if there’s media fallout and public resentment, that’s part of the job.”
Since its conception as a civil defense engineering force under George Washington, the Corps of Engineers swelled to gargantuan 20th-century proportions, redesigning rivers through dams and channelization projects nationwide. A few top-ranking colonels and generals wear fatigues, but most are bureaucrats and engineers benefitting from military-level authority. In the 1940s, preempting the rise of a Missouri Valley Authority that would keep the Missouri in regional hands, the Army Corps coupled with its western counterpart, the Bureau of Reclamation, to propose an unprecedented federal flood control project consisting of dams and channelization structures that would simultaneously create new riverbank land for agricultural development; open the Missouri to barge traffic all the way to Sioux City, Iowa; welcome Montana into the agriculture belt with massive irrigation projects; and prevent floods almost entirely.
New land was indeed created, at the expense of a nearly equal amount of vitally important Native American land in the Dakotas now under the reservoirs. The barge traffic never materialized. Montana soil didn’t support crops en masse, and the flooding speaks for itself. The project wasn’t fully complete until 1981, and 37 years later, the project’s main function has seemingly fallen apart. The Army Corps, in establishing control over the Missouri River, has also absorbed the blame for everything that goes wrong with it.
Valley farmers in Nebraska City demand that the Corps do something impossible: Control the Missouri River. And they claim that the Corps promised to do just that. By creating hundreds of thousands of acres of new land and assuring farmers it was safe to cultivate, the Corps made thousands of friends. Now that the bill for that massive movement of land is due, the Corps is finding it much easier to give than to take.
In 2004 a Minnesota judge, addressing a barrage of lawsuits against the Corps, asserted that the Corps had to comply with both the Flood Control Act and the Endangered Species Act. After years as environmentalists’ No. 1 enemy, the Corps was legally bound to become their ally. The court curiously recognized following both laws was mutually exclusive. Preventing floods hurts wildlife. Saving wildlife causes floods. The Corps, unable to do both, would have to try.
That year, the Corps released a new Master Manual, the Bible of Corps river operations. The previous 1979 Master Manual dictated the Corp’s hierarchy of authorized purposes as flood control followed by everything else. In the new Manual, flood control joined the long list of authorized purposes, with fully one-third of the rest of its vocational paragraph dedicated to the last item: fish and wildlife. A few years later, the valley began flooding.
Marian Maas can’t get to her property. Hamburg Bend, near Hamburg, Iowa, is another of the Corps’ major recovery projects. A straw of an engineered side-channel siphons off part of the river, slowing it down and creating dense habitat. Nearby, in the flooded town of Hamburg, piles of furniture outside each home are speckled with children’s toys. Between the town and the river, Maas spent 22 years restoring a prairie-wetland ecosystem on her property as a place where wounded military veterans could come for therapeutic stays. Suddenly it was buried under water and tons of Platte sediment.
A lifelong environmentalist, Maas was in a bind. On one hand, she lobbies for ecological improvements on the river. An early 2000s study by the National Research Council determined that immediate and large-scale restoration was necessary to save the Missouri River as a wildlife corridor. On the other hand, doing so puts her land and her retirement dream at risk. “We do walk the walk,” she said. “I haven’t reconciled myself to it yet. We put so much time and work into it.”
Maas and other environmentalists are the humblest voices raging on the river. They find themselves in the position of receiving blame for a flooding river while feeling like they’ve accomplished only a fraction of their goal. To them it’s correlation without causation. Their river improvements have been marginal, leaving no significant legacy on the river, upstream or downstream. When the Army Corps channelized the lower third of the Missouri, the river lost nearly the size of Rhode Island in riparian habitat. In 1999, the Corps received authority to purchase one-third of that lost habitat from willing sellers. As of 2009, Corps had acquired one-third of that one-third. It hasn’t acquired much since, and its latest Missouri River plan specifically deprioritizes habitat restoration and land acquisition.
Robb Jacobson is a hydrologist with the U.S. Geological Society in Columbia, Missouri. He speaks carefully and winces at a misrepresented fact. Jacobson been working on cases related to Missouri River sedimentation for decades.
“I think (the Ideker decision) was based on faulty testimony,” he said. “In the sense that it was a scientific argument that was presented by their expert witnesses, I’d say it was faulty or incomplete.”
There’s a difference between science and court science, he said. The Corps’ witnesses were solid engineers but likely dry and unconvincing onstage. The farmers’ argument that the riverbank was eroding into the riverbed and increasing flood potential felt convincing.
But Jacobson pulled out a graph from a study he did in 2009, a few years after the floods began. It shows that the Missouri River is actually doing what the Army Corps designed it to do: degrade. The channel pushes sediment downriver on its own accord, lowering the riverbed over time, not raising it. Except in one 150-mile stretch, where it doesn’t: the stretch from Omaha to St. Joseph, where, coincidentally, the vast majority of Ideker plaintiffs live. So Scott Olson and the plaintiffs were correct all along. The riverbed is rising where they live. But why?
Jacobson poses his explanation carefully. The farmers’ blaming the ecological restoration is flawed, he said. Even if the banks eroded into the riverbed and not a single particle went downstream as designed, the river’s container would be the same. It would be shaped different, less like a U than a parenthetical turned on its side, but it would carry the same water.
But Scott Olson’s land still flooded. A theory of river containers doesn’t explain why.
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The real reason why the river is destroying farmers’ lives, Jacobson said, lies in the way the Army Corps designed the river 80 years ago. The Missouri River is a sand-based river. As long as it doesn’t flood, it shuttles sand downriver to Steve Engemann’s dredging boat in Hermann as planned. But when it floods, the suspended sediment follows the overtopping floodwaters and hits riverside vegetation. The water carries on, but the sand drops. When the water recedes, the banks are higher and narrower. Eventually, the river channel rises and pinches. Hold up two fingers in a V and move them closer together. The narrower V floods with less water.
This happens with every single flood. In other words, every flood on the Missouri increases the likelihood of future floods. Remember that Egyptian Pyramid’s worth of sediment the Army Corps dumped into the Missouri? The Platte River, by far the Missouri’s thickest tributary, delivers more than twice that much sand and silt every year. That’s enough to make a difference in bed height. Most Ideker plaintiffs live within 100 miles downstream of Plattsmouth, Nebraska — the only stretch of the Missouri where the bed is significantly rising.
Couple that with increasing rainfall in the Missouri River basin since the mid-1990s, as Jacobson showed me in another graph, and you have a decade of flood disaster that will only get worse. Climate models suggest even more rain in coming decades.
The Corps didn’t want to say all this in court, perhaps because they would still be liable. The Corps is responsible for flooding Scott Olson’s land, just not for the reasons he claims. By not admitting that, the Corps allowed the prevailing narrative of the case to be that the U.S. Fish and Wildlife Service and ecological restoration are to blame. When the Corps lost, they may have damned the pallid sturgeon to extinction.
The solution, Jacobson said, feels stunningly simple: Move the levees back. In the river’s original design, which included the dams and channelization, the river would have at least a 3,000-foot berth. In many places today, it’s a 600-foot berth. Farmers took every scrap of land available, sowing all the way up to the bank. “The grand bargain would be, to the ag community, yeah, they’re going to take a bunch of land,” he said. “You’ll be compensated for it. But they’ll build a federal levee with a floodway.”
The battle for control of the Missouri is a question of scale. At the scale of human history, the scale we’ve been taught to empathize with, the farmers’ case is undeniably moving. In the world of human history, their mothers’ and fathers’ land, the land they used to fish from as kids, the land that has put dinner on their tables their entire lives, the only land they’ve ever known, is disappearing under their eyes. People working for the government promised to take care of them, and they aren’t. This is all true. But then you have the other scale, the one we’ve only this century begun to consider: the scale of natural history. In that world, you have an apex predator that was practically intelligently designed for a lazy, turbid river, one that has survived there 700,000 times longer than valley farmers, through 25 geologic ages, that is being chucked into oblivion so that we can make the Missouri River flood even worse than it already did.
“Any time you have a catastrophe like this year’s flooding, you have that window of opportunity where maybe people start to think about alternative ways of living and making your living out of your land,” says Jacobson. Maybe they’ll give up fighting the river and say it’s not worth it after all these years.
On his way home, Scott Olson stopped at a gas station restaurant in Tekamah for lunch. He said hi to every person there, each of whom knows his name. Art, a Mexican immigrant with a long face, dragged in.
Scott: Not much of a line at the Cargill, is there?
Scott: Just roll her on through. They’ve got, what, a nickel over?
Art: I think so. Yup.
Scott: They’re needing corn real bad, aren’t they?
Scott: Yeah, they’re gonna lose a lot of next year’s crop. Next year they’ll be looking for some grain.
Art: Well, they better give me something. I gotta make one more load, I hope.
Scott: Good luck. Give ‘em hell.
Another farmer chimed in: “I was hoping to maybe do something once I could start getting in the field, but I don’t know. I think I kind of lost hope on that.”
Leaving the restaurant, Olson detoured to check out his riverfront property, which remains unplanted and deeply scoured.
“This river should not be this way,” he said. “It has not been in the past. Why are we now having these problems if not but for what the Corps is doing to it? It’s a changed river. It’s no longer flood control, it’s all birds and fish.”
“If not but for” is a legal term that qualifies fault in a takings case. Olson has internalized, in his everyday speech, a legal mantra that pins the blame for his loss on someone else. And who can blame him? His anger is real, and his father’s legacy on the floodplain is legitimate. His son Blaine just moved home from college and is working full-time on the farm with no intention of doing anything in life but carrying on his father’s work. For him, Jacobson’s simple answer of buying the levees backward doesn’t replace his livelihood.
“Look at the number of dollars that comes out of all this,” he said, indicating farmland on the west side of a road. “We pay taxes, we buy seed, we buy pickups, we buy food. If we’re all gone, there’s no taxes on this. There’s nothing that comes out of this. I read an article a while back that says every acre of wildlife is worth $10,000 an acre. No. You take one acre of corn. If that acre of corn can produce $200-300 for that acre, it pays for the taxes, it goes to the schools, it goes up and down Main Street America, it buys groceries, boots, clothes, pickups. The money is spent. You take 10 acres of this stuff,” he said, indicating wetland to the east, “Who’s making any money? If the government owns it, there’s no taxes on it. There’s no jobs. I mean, there’s nothing there, is there?
“We can either build our lives like we’ve been doing, support and be part of and contribute to. Or we can walk away and let shit die.”
When Olson talks about the price of corn at the Cargill plant, or the lost dollars in the flooded town of Rock Port, Missouri, he’s not talking about the greed of Big Ag. He’s talking about Tekamah, Nebraska, about a land that can still be plowed, tamed and loved. In the evening, Olson closes the shop and heads down the road, turning west up a hill that climbs the valley wall toward a house. From it, Olson can see the Loess Hills of Iowa rising miles away. The son of one of the men at the restaurant helped Olson build that home, using local materials. It looks out over Olson’s corn and soybeans with the poise of a house safe from harm.
Editor’s note: On January 30, 2020, we modified quotes for accuracy and clarity.
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