Justices rule that temporary flooding can constitute a taking

The Supreme Court ruled today that temporary government-induced flooding can give rise to a takings claim under the Fifth Amendment.

The 8-0 ruling came in Arkansas Game and Fish Commission v. United States, a case in which the Arkansas Game and Fish Commission argued that it is owed compensation by the Army Corps of Engineers for timber damage caused by flooding.

The court did not rule whether there was a taking in the Arkansas case. Instead, Justice Ruth Bader Ginsburg wrote in the opinion that there was no blanket exemption for takings claims involving temporary flooding. Justice Elena Kagan was recused.

The commission claims it deserves compensation for loss of revenue in timber sales in the Black River Wildlife Management Area in the northeast part of the state.

The damage to the timber was caused by the Army Corps' management of the Clearwater Dam upriver, the state argues. Between 1993 and 2000, the Army Corps tinkered with the water flow from the dam, which the commission said led to flooding that eventually killed many mature oak trees at the Black River site (Greenwire, Sept. 26). In 2009, the U.S. Court of Federal Claims awarded the commission $5.8 million.


The U.S. Court of Appeals for the Federal Circuit reversed that decision in a March 2011 ruling, saying that temporary flooding does not constitute a taking.

The question facing the high court was whether temporary flooding of the type that occurred at the Black River site could ever be a taking, which is generally viewed as a permanent loss of property.

Although permanent government-caused flooding has been recognized as a taking by courts, temporary flooding has not, as the federal circuit noted in its ruling.

Ginsburg wrote that "recurrent floodings, even if of finite duration, are not categorically exempt from takings clause liability."

Lower courts will have to make a fact-specific determination about whether there was a taking, Ginsburg said.

"Court must assess the relevant facts and circumstances in each case to determine whether what the government has done amounts to a taking," she explained in remarks from the bench.

Courts must consider "the duration of the interference, whether the invasion was foreseeable when the government acted, the severity of the interference, and the degree to which it upsets the property owner's reasonable expectations regarding the land's use," Ginsburg said.

During the October argument, members of the court were hostile to the federal government's position that no landowners downstream of a government-operated dam can seek compensation in part because they should be aware of the inherent risks of owning land on a floodplain (Greenwire, Oct. 3).

In a statement, Jim Goodhart, the Game and Fish Commission's chief legal counsel, said the ruling "sends a strong messages about what our agency has been litigating with the U.S. Army Corps of Engineers over the past seven years."

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