Damage from government-caused temporary flooding can require compensation for
takings under the Fifth Amendment of the U.S. Constitution, the U.S. Supreme
Court ruled Dec. 4 (Arkansas Game and Fish Commission v. United States ,
U.S., No. 11-597, reversed and remanded 12/4/12).
Such temporary flooding is not categorically exempt from requiring
compensation under the Fifth Amendment, the court ruled.
The court's 8-0 decision reverses a ruling in March 2011 by the U.S. Court of
Appeals for the Federal Circuit that held flood conditions needed to be
permanent before the resulting damage can constitute a taking of property
requiring compensation under the Fifth Amendment (Arkansas Game and Fish
Commission v. United States, 637 F.3d 1366 (Fed. Cir. 2011); 62 DER A-29,
The case involves a claim by the Arkansas Game and Fish Commission that
flood-control actions by the U.S. Army Corps of Engineers destroyed trees being
grown for harvest in a 23,000-acre state wildlife preserve 115 miles downstream
from a dam built by the corps. The state is seeking $5.7 million in
The corps created the Clearwater Dam in Missouri in the 1940s to manage
flooding on the Black River. Starting in 1953, the corps adopted a management
plan that set guidelines for the annual release of dam water to control
flooding. From 1993 to 2000, the corps varied water releases from about 10 to 11
feet to around six to eight feet to lower the water height in downstream areas
but extended the duration of flooding, which benefited agricultural interests
along the Black River but damaged the tree crops in the wildlife preserve.
Nationwide, the corps controls 11,750 miles of levees and operates over 690
dams for purposes ranging from flood control to navigation, water supply,
hydropower, and recreation, the U.S. solicitor general noted in a brief to the
Supreme Court. Separately, the Bureau of Reclamation operates 476 dams, 337
reservoirs, and more than 8,100 miles of irrigation canals, some of which serve
flood-control purposes, the brief said.
In oral arguments Oct. 3, the United States had argued that the corps should
not be held to investigate the impacts of its flood management actions on every
downstream property owner. The United States also said that Flood Control Act
protections exempting the corps from consequential damages resulting from flood
control were key to the corps taking on the responsibility to manage flood
waters for the common good (192 DER A-25, 10/4/12).
The United States had argued that the corps needs to be able to flexibly
manage large flood-control systems to deal with changing situations on rivers
with multiple affected parties without exposing itself to massive liability.
In this case, in July 2009 the Court of Federal Claims found the United
States liable for over $5.7 million in compensation for its taking of property
from the flood damages (Arkansas Game and Fish Commission v. United
States, 87 Fed. Cl. 594 (2009)).
The Federal Circuit reversed that finding of liability based on the temporary
nature of the flood conditions. On remand, the United States's challenges to the
Claims Court's fact-finding remain to be resolved. These include challenges
relating to causation, foreseeability, substantiality, and the amount of
damages, the Supreme Court said in its opinion.
The Supreme Court rejected the argument that its 1924 decision in
Sanguinetti v. United States ( 264 U.S. 146 (1924)) involving a flooding
claim required flood conditions to be permanent to constitute a property
In Sanguinetti the court stated, “In order to create an enforceable
liability against the Government, it is, at least, necessary that the overflow
be the direct result of the structure, and constitute an actual, permanent
invasion of the land.”
In the Dec. 4 decision, the Supreme Court noted the statement from
Sanguinetti was nondispositive to that case and merely summarized the
court's previous flooding cases, which had up to that point all involved
permanent government actions.
The Supreme Court also noted that Sanguinetti was decided before the
court established precedents for the existence of temporary takings claims under
the Fifth Amendment during a series of World War II-era cases and that nothing
in Sanguinetti set flood cases apart from the jurisprudence of other
Justice Elena Kagan did not participate in the consideration or decision of
By John Henry Stam
Text of the U.S. Supreme Court's decision in Arkansas Game and Fish
Commission v. United States is available at http://www.supremecourt.gov/opinions/12pdf/11-597_i426.pdf.
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