Temporary Takings Claims May Be Brought For Flood Damage, Supreme Court Says

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, 3/31/11).

Flooding of Arkansas Wildlife Preserve

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 compensation.

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.

Acting for the Common Good

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.

Precedent in 1924 Decision

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 taking.

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 takings claims.

Justice Elena Kagan did not participate in the consideration or decision of the case.

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.