Supreme Court Makes a Dam Decision

Temporary flooding can be a taking. And the government can be forced to compensate for it.

That’s the word from the Supreme Court, which ruled in an 8-0 decision that there’s no reason for courts to differentiate flooding from the “myriad other instances of government occupation or invasion of property.”

The case arose from a dispute between the Arkansas Game and Fish Commission and the Army Corps of Engineers.

The Commission owns and operates 23,000 acres of forest and recreational land located approximately 115 miles downstream from Clearwater Dam in Missouri. Water is released from the dam in quantities governed by a pre-approved "management plan."

Between 1993 and 2000, the Army Corps of Engineers periodically authorized flooding that exceeded the authorized plan levels and extended into the peak timber growing season. The repeated flooding damaged or destroyed more than 18 million board feet of timber and disrupted the Commission's use and enjoyment of the property.

The Commission -- asserting that the flooding constituted a taking -- asked the feds for compensation. The government refused because, after all, what's a little temporary flooding between friends?

The Court of Federal Claims agreed with the Commission that the excessive flooding wasn't merely water under the bridge, and awarded the Commission a $5.7 million judgment.

The Federal Circuit Court of Appeals reversed the judgment last year, ruling that the Commission couldn't recover unless the flooding was "a permanent or inevitably recurring condition, rather than an inherently temporary situation."

Tuesday, the Supreme Court concluded that recurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability.

Justice Ruth Bader Ginsburg, writing for the unanimous Court, reasoned that there is "no solid grounding in precedent for setting flooding apart from all other government intrusions on property," Reuters reports.

But the decision isn't all that bad for the feds.

The government had argued to the Court that finding for the Commission would disrupt public works dedicated to flood control, turning every passing flood from a federal flood control project into a compensable taking. Justice Ginsburg, however, explained that the Court's decision does not credit all such claims, stating, "It is of course incumbent on courts to weigh carefully the relevant factors and circumstances in each case, as instructed by our decisions."

This isn't a blanket, you-break-it-you-buy-it decision. Instead, the Court wants the lower courts to weigh factors like the duration of the interference with private property, the degree to which the invasion is intended or is the foreseeable result of authorized government action, the character of the land at issue, the owner's "reasonable investment-backed expectations" regarding the land's use, and the severity of the interference.

Related Resources:

• Arkansas Game & Fish Commission v. U.S. (FindLaw's CaseLaw)
• Argument Preview: Federal Flood Liability in Another Dam Case (FindLaw's Supreme Court Blog)
• 5th Cir Panel Backtracks: Corps Isn't Liable for Katrina Breach (FindLaw's Fifth Circuit Blog)