Dozens of lawsuits filed so far seek compensation for the damage homeowners say was caused when the U.S. Army Corps of Engineers released water from two area reservoirs in the days after a Category 4 hurricane and historic rainfall flooded Houston in late August.With an estimated 10,000 homes or more affected by the reservoirs, the litigation has the potential to reach into the billions of dollars. But convincing a judge the controlled release counts as an improper “taking” of private property under eminent domain law could face challenges in court, and a payout isn’t a sure thing.
The ruling leaves open a large number of other issues relevant to the determination of what kinds of government-induced flooding qualify as takings. Justice [Ruth Bader] Ginsburg’s [opinion for the Court] does note several factors that are relevant to such determinations, including the duration of the flooding, “the character of the land at issue and the owner’s ‘reasonable investment-backed expectations’ regarding the land’s use,” and “the degree to which the invasion is intended or is the foreseeable result of authorized government action.” But the Court does not tell us how long the flooding must continue before it is long enough to qualify as a taking, what degree of intent or foreseeability is required, in what ways “the character of the land” matters, how much in the way of “investment-backed expectations” the owner must have, or how these four factors should be weighed against each other in cases where they cut in opposite directions.
[T]he Court should have gone further and recognized that what ultimately matters is not the duration of the flooding, but that of the damage inflicted. If the government deliberately damages and destroys private property by physically occupying it with water or anything else, it has no less “taken” it if the destruction occurs quickly than if it takes a longer time. Either way, the effect is permanent and private property has been taken and destroyed by the government in order to advance some policy objective….For this reason, the Supreme Court ruled [in a well-known 1871 case] that the government was liable under Wisconsin’s takings clause when it deliberately flooded a property owner’s land by building a dam that directed water toward
it. The key factor, as Justice Samuel Miller recognized, was the infliction of “irreparable and permanent injury,” which can occur irrespective of the duration of the flooding. The federal Takings Clause… is “almost identical in language” to Wisconsin’s, and has much the same purposes.Arkansas Game & Fish could thus have made a stronger statement than simply concluding that “government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.” It might instead have held that such deliberate flooding is always a taking if it inflicts significant permanent damage on
the property in question.