Flooding in Houston caused by Hurricane Harvey. (LM Otero/AP)

In the wake of massive flooding caused by Hurricane Harvey, the US Army Corps of Engineers sought to limit the damage by engaging in additional “controlled release” flooding of its own in order to reduce pressure on two water reservoirs in the area and stop them from potentially overflowing. Unfortunately, the “controlled” flooding inflicted extensive damage on thousands of homes and businesses that might otherwise have been spared the effects of the storm. Numerous owners have filed lawsuits in the US Court of Federal Claims, arguing that the deliberate flooding of their property constitutes a “taking” of their property, for which the government must pay “just compensation,” as required by the Takings Clause of the Fifth Amendment:

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.

In its unanimous decision in Arkansas Game and Fish Commission v. United States (2012), the Supreme Court rejected the Obama administration’s dubious argument that temporary flooding of property by the government can never qualify as a taking. But the Court’s decision was far from a model of clarity when it comes to the question of how to figure out whether a given case of deliberate temporary flooding should be considered a taking or not. I described the ambiguities in this article:

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.

In the Arkansas Game and Fish case, the Supreme Court did not make a final determination on the issue whether a taking had occurred. But when the case was remanded for further consideration by the lower courts, the Federal Circuit ruled that a taking had indeed occurred, as a result of the federal government’s repeated flooding of Arkansas state land over a period of several years, which inflicted extensive damage.

How do the Houston cases stack up under the admittedly vague Arkansas Game and Fish criteria? Three of the factors clearly cut in favor of the property owners. It is pretty obvious that the flooding of numerous homes and businesses was a “foreseeable result” of the government’s action (even if it was sometimes difficult to foresee exactly which properties would be affected). The “character” of the land and “reasonable investment-backed expectations” also support the property owners’ case. These are, after all, ordinary residential and commercial properties, and the owners surely had a reasonable expectation that they could continue to use their land without fear of deliberate flooding by the government. On the other hand, the duration of the flooding was relatively short, and the government claims that one-time flooding can never qualify as a taking. Under this theory, only recurrent flooding can do so, as in the Arkansas Game and Fish case.

The plaintiffs understandably deride this “one flood free” rule, and urge the courts to reject it. It makes little sense to claim that a one-time flood can never be a taking regardless of how deliberate it was or how much damage it inflicts. In this instance, the damage to at least some of the homes and businesses was severe, and the deliberate flooding that caused it should be considered a taking.

It is difficult to predict which way the judiciary will ultimately rule on these cases. The Arkansas Game and Fish standards are far from clear and the courts have a history of siding with the government in many ambiguous takings cases. It is possible that the Court of Federal Claims will adopt the “one free flood” rule. But it is also possible that the short duration of the flooding will be outweighed in the judges’ minds by the property owners’ strong position on the other three factors outlined in Arkansas Game and Fish. As famed takings scholar Richard Epstein puts it, “[t]here’s nothing about this which is straightforward or simple.”

This dilemma highlights a weakness in the Arkansas Game and Fish test that the Supreme Court should eventually fix by ruling that deliberate flooding is automatically a taking, at least if it inflicts significant damage on private property. I made this point in my 2013 article on the Supreme Court ruling:

[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.

In some of the Hurricane Harvey cases, there is a factual dispute over whether the Corps of Engineers’ actions really did cause the flooding of the properties in question. The government claims it would have happened anyway, given the extent of the storm. These questions of causation may turn out to be difficult. But in cases where the government’s actions really did cause the flooding, compensation should be paid under the Takings Clause.

The Harvey takings cases could turn out to be important precedents. Deliberate flooding is regularly used as a policy tool by government agencies, and the decisions in these cases could potentially affect a good many other policies.

As in Arkansas Game and Fish , the federal government claims that it had good reasons for flooding the affected land. In the Houston case, the goal was to prevent even greater flood damage from occurring, if the dams were unable to contain the overflow of water in the reservoirs. But the fact that the flooding might have been a good policy (or at least the lesser of the available evils under tragic circumstances) does not mean there was no taking. As the Supreme Court famously put it in a 1960 case, the whole point of the Takings Clause’s just-compensation requirement is “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.” Even if the “public burden” is entirely justified, that does not mean it should be inflicted on the property owners, as opposed to “the public as a whole.” That is true when the government takes property to build a highway or military base that benefits the general public. It is equally true when it floods some people’s property to prevent potentially greater devastation elsewhere.