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Supreme Court's Dam Decision May Open the Floodgates to Lawsuits

By Andrew Lu on December 06, 2012 | Last updated on March 21, 2019

The Supreme Court has found that the federal government may have to compensate property owners who suffer flood damage caused by the government. This dam decision may open the floodgates to litigation.

In an 8-0 decision, the Supreme Court found that intentional flooding caused by the Army Corps of Engineers in Missouri may be considered government taking of the property. This would be no different than a government occupation or invasion of property, the court ruled.

As a result, the government may have to compensate the property owners.

The complaint was initiated by the Arkansas Game and Fish Commission, the owner and operator of 23,000 acres of forest and recreational land located 115 miles downstream from the Clearwater Dam near Piedmont, Missouri.

The Army Corps of Engineers releases water from the dam in quantities allowed by the government according to its pre-approved "management plan." Over the course of several years, the Engineers authorized repeated flooding that damaged or destroyed more than 18 million board-feet of timber and disrupted the Commission's use and enjoyment of the property. As a result, the Commission asked for compensation.

The Federal Circuit Court of Appeals disagreed with the Commission and found that the property owners were not entitled to any compensation. The appeals court said that because the flooding was not permanent or inevitable, it did not constitute a compensable "taking." Therefore, the government did not have to pay.

But the Supreme Court reversed, and held that flooding doesn't have to be permanent to be considered a government taking. So the government may have to pay.

Still, this doesn't mean that every property owner may now collect from the government if they happen to live in a flood plain. Instead, the high court merely found that these property owners may have the right to sue. It will now be up to the lower courts to weigh the facts in each individual case to determine if a property owner is entitled to compensation.

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