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Temporary Flooding Not Exempt under 5th Amendment "Takings Clause"

Does a taking occur, for purposes of the 5th amendment, such that compensation must be paid, when the government induces flooding that is repetitive, but temporary in nature?

On December 4, 2012, the United States Supreme Court narrowly answered that question in Arkansas Game and Fish Commission v. United States, Case No. 11-597. In an 8-0 decision, with Justice Kagan recusing herself, the U.S. Supreme Court held that government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. But the Court noted that there was no bright line rule for whether a particular government interference constitutes a taking. Instead, courts must review the totality of the circumstances.

The case arose from the following facts: From 1993 until 2000, the U. S. Army Corps of Engineers authorized flooding that extended into the peak growing season for timber on forest land owned and managed by Arkansas Game and Fish Commission (Commission). Over those years, the repeated flooding damaged or destroyed more than 18 million board feet of timber and disrupted the ordinary use and enjoyment of the Commission's property. The Commission sought compensation from the U.S. government pursuant to the Fifth Amendment's Takings Clause, arguing that flooding each year constituted a taking of property, for which it should be compensated.

The Court of Federal Claims sided with the Commission, awarding it $5.7 million in damages. It found that the U.S. Army Corps' deviations from its Manual caused six consecutive years of substantially increased flooding, which constituted an appropriation of the Commission's property, though a temporary rather than a permanent one. The Court of Federal Claims focused on the cumulative effect of the flooding year after year, which resulted in substantial damage to the trees' root systems and "catastrophic mortality" that substantially altered the character of the area.

However, the Federal Circuit Court of Appeal disagreed and reversed the judgment, holding that government-induced flooding can give rise to a taking claim only if the flooding is "permanent or inevitably recurring." The Federal Circuit Court of Appeal relied on the cases Sanguinetti v. United States (1924) 264 U. S. 146, 150, and United States v. Cress (1917) 243 U. S. 316, 328, in explaining its holding, saying that "cases involving flooding and [flowage] easements are different."

Writing for the Court, Justice Ginsburg rejected the appeals court's holding, stating: "recurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability."

The 5th Amendment Takings Clause

For those of you who need a refresher, the 5th amendment states in relevant part: "[N]or shall private property be taken for public use, without just compensation."

"The Takings Clause is designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole," writes Ginsburg.

However, she warns that there is no magic formula for determining whether a given government interference with property is a taking.

Bright Line Rules

The opinion identifies the bright line rules that have evolved in this area of jurisprudence:

1. A permanent physical occupation of property authorized by government is a taking. See, Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 426 (1982).
2. A regulation that permanently requires a property owner to sacrifice all economically beneficial uses of his or her land is a taking. See, Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1019 (1992).

Other than those scenarios, most takings claims are subject to fact specific inquiries into whether or not the interference constitutes a taking.


The Court reviewed the history of cases dealing with flooding and takings, noting that the Court had recognized that several cases where flooding constituted a taking. In Pumpelly v. Green Bay Co., 13 Wall. 166 (1872), the Wisconsin Legislature had authorized the defendant to build a dam which led to the creation of a lake, permanently submerging the plaintiff's land. The Court held "where real estate is actually invaded by superinduced additions of water, earth, sand, or other material . . . so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution."

United States v. Cress recognized that seasonal recurring flooding could constitute a taking.

Temporary Takings

Temporary takings in general had previously been ruled upon by the court, and Justice Ginsburg noted that "if government action would qualify as a taking when permanently continued, temporary actions of the same character may also qualify as a taking."

However, there was a division on how to classify temporary flooding, with the government arguing that it should be exempted altogether.

The Court found several instances where takings temporary in duration were compensable, such as temporary possession of many properties in wartime, and when government action occurring outside a property gave rise to "a direct and immediate interference with the enjoyment and use of the land."

No Blanket Exception for Temporary Recurring Flooding

Based on the foregoing precedent, the Court rather easily found that government-induced flooding of limited duration may be compensable, and that there was no authority for creating a blanket temporary-flooding exception.

U.S. v. Sanguetti Was Limited in its Holding and Distinguishable on its Facts

The Court was unpersuaded by the government's argument that U.S. v. Sanguetti required that floodings be permanent in nature to constitute a taking. At issue was the statement in U.S. v. Sanguetti that "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." Importantly, however, the court found that such a distinction between permanent and temporary was not necessary to the holding in U.S. v. Sanguetti.

Moreover, the Court concluded that the holding in U.S. v. Sanguetti was based on the specific facts of the case, which included issues with forseeability and causation because the government did not intend to flood the land or have "any reason to expect that such [a] result would follow" from construction of the canal. The property was subject to seasonal flooding prior to the construction of the canal, and the landowner failed to show a causal connection between the canal and the increased flooding, which may well have been occasioned by changes in weather patterns.

Arguments Not Addressed

The government raised several issues for the first time at oral argument that the Court declined to address:

1. Whether the damage in this case is permanent or temporary;
2. Whether damage to downstream property, however foreseeable, is collateral or incidental;
3. The flooding is not aimed at any particular landowner and therefore does not qualify as an occupation compensable under the Takings Clause; and
4. The effect of Arkansas water-rights law.

The Court advised that whether these issues had been preserved, and what, if any effect that they had on this case, was a matter for the Court of Appeals to review on remand.

Factors to Consider On Remand

The Court identified factors that will be relevant to a takings claim inquiry, and that will have to be evaluated by the Court of Appeals, when it rehears the case on remand: time, degree to which the invasion is intended or is the foreseeable result of authorized government action, character of the land at issue, the owner's "reasonable investment-backed expectations" regarding the land's use, and severity of the interference.

The Court reiterated that because the Court of Appeals rested its decision entirely on the temporary duration of the flooding, it did not address challenges made by the government as to some of the other factors, and that those issues must be looked at to determine if they had been preserved and if so, they may be considered on remand.

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