Inverse Condemnation

Aug 082012

Floods and Federal Temporary Takings

Counsel for the petitioner previewed arguments before the Supreme Court in Arkansas Game & Fish Commission v. United States, cert. granted, Apr. 2, 2012 (No. 11-597) during a panel on federal takings at the ABA 2012 Annual Meeting. The case asks the Supreme Court to consider whether temporary flooding constitutes a compensable taking and, more broadly, government takings liability for floodway management, when some lands are deliberately flooded to prevent greater damage elsewhere.

Background of the Case

The Fifth Amendment Takings Clause guarantees that private property shall not be taken for a public use without just compensation. This was designed to bar the Government from forcing some people alone to bear public burdens which should be borne by the public as a whole. In what appears to be a case of first impression, the issue before the Court in Arkansas Game & Fish Commission v. United States is whether the U. S. Government is liable under the Takings Clause for intermittently flooding timber lands owned by a state agency.

The Arkansas Game & Fish Commission owns and operates a 23,000-acre wildlife refuge and recreational preserve. Clearwater Dam, on Arkansas’ Black River, is a federal flood control project that lies 115 miles upstream from the refuge. Between 1993 and 2000, the U.S. Army Corps of Engineers released more water than authorized from the Clearwater Dam. As a result, the refuge subsequently suffered extensive property damage–primarily the death of numerous oak trees–which the Arkansas Game & Fish Commission attributed to the Corps’ intentional flooding of the property. In 2001, the U.S. Government acknowledged the substantial damage its flooding had caused on Arkansas Game & Fish Commission’s land and ceased deviations from the floodwater release plan.

After a lengthy trial in 2009, the U.S. Court of Federal Claims awarded $5,700,000 in favor of the Arkansas Game & Fish Commission finding that the Army Corps of Engineers’ actions in intermittently flooding petitioner’s property foreseeably destroyed or degraded the property, requiring just compensation to be paid pursuant to the Takings Clause. The Supreme Court granted cert after a divided panel of the U.S. Court of Appeals reversed the Court of Federal Claims award.

Blurring a Takings issue with a Damages issue

A temporary flooding scenario may be a case of first impression, but the Supreme Court has consistently recognized damage claims under the Takings Clause in temporary taking scenarios. To a certain degree the temporary issue is irrelevant; it happened once and injury occurred. Temporary flooding is no different than more permanent flooding that occurs in other inverse condemnation cases which regularly result in awards of compensation. Thus, the main issue should be whether the petitioner was damaged by the flooding for which compensation is due.

Ultimately, the Supreme Court will determine whether the temporary nature of intentional intermittent flooding acts constitutes a taking for which compensation is due. The respondent’s brief on the merits is due on August 27, 2012 and the case is set for argument on October 3, 2012.