Turn to the nation's most objective and informative daily environmental news resource to learn how the United States and key players around the world are responding to the environmental...
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).
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.
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 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.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)