The Washington Post

Supreme Court says government may have to pay for flooding

Property owners may seek compensation if the government is responsible for flooding their lands, even if the condition is not permanent, the Supreme Court ruled unanimously Tuesday.

The court ruled in favor of the Arkansas Game and Fish Commission, which complained that the federal government’s annual release of water from a dam 115 miles upstream periodically flooded 23,000 acres of its property from 1993 to 2000.

The U.S. Court of Appeals for the Federal Circuit ruled that, because the flooding receded each year and was not permanent, the commission could not seek compensation under the U.S. Constitution’s Takings Clause. The Fifth Amendment prohibits the government’s taking of private property “without just compensation.”

Justice Ruth Bader Ginsburg wrote for her fellow justices that the appeals court had misinterpreted Supreme Court precedent when it said that compensation may be sought in instances of flooding only when it is a “permanent or inevitably recurring condition, rather than an inherently temporary situation.”

Ginsburg said the justices have agreed before that a taking occurs when the government causes flooding. And she said the court has also settled that government acquisition or invasion of property need not be permanent in order to qualify as a taking.

“There is thus no solid grounding in precedent for setting flooding apart from all other government intrusions,” Ginsburg wrote. “And the government has presented no other persuasive reason to do so.”

The Army Corps of Engineers controls the Clearwater Dam in Missouri along the Black River. In the years at issue, the corps agreed to requests by farmers that it delay periodic releases of water so they could extend harvesting season.

But the pent-up water, when released, flooded the Dave Donaldson Black River Wildlife Management Area in northeast Arkansas. Six years of cumulative flooding destroyed 18 million board feet of timber, closed the land to recreational use and resulted in a loss of wildlife in the hunting preserve.

The corps discontinued the practice in 2000.

Arkansas sued, and the U.S. Court of Federal Claims awarded it $5.7 million for the damage.

The government told the Supreme Court that flooding that was temporary should be an exception to the Takings Clause. The government said that allowing Arkansas’ claim would endanger public flood-control projects.

But Ginsburg said the court’s decision only means there is no automatic exception for temporary flooding. Courts analyzing such claims must consider the duration of the flooding, whether the flooding was inevitable as a result of the government’s action, the severity of the problem and the degree to which it upset the owner’s enjoyment of his property, Ginsburg said.

“Today’s modest decision augurs no deluge of takings liability,” she wrote.

The case is Arkansas Game and Fish Commission v. United States . Justice Elena Kagan recused herself from the case, presumably because she had worked on it in her former role as solicitor general.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.

The Freddie Gray case

Please provide a valid email address.

You’re all set!

Campaign 2016 Email Updates

Please provide a valid email address.

You’re all set!
Show Comments
The Republicans debated Saturday night. The New Hampshire primary is Feb. 9. Get caught up on the race.
Highlights from Saturday's GOP debate
Except for an eminent domain attack from Bush, Trump largely avoided strikes from other candidates.

Christie went after Rubio for never having been a chief executive and for relying on talking points.

Carson tried to answer a question on Obamacare by lamenting that he hadn't been asked an earlier question about North Korea.
The GOP debate in 3 minutes
Play Video
We have all donors in the audience. And the reason they're booing me? I don't want their money!
Donald Trump, after the debate crowd at St. Anselm's College booed him for telling Jeb Bush to be "quiet."
Play Video
New Hampshire polling averages
Donald Trump holds a commanding lead in the next state to vote, but Marco Rubio has recently seen a jump in his support, according to polls.
New Hampshire polling averages
A victory in New Hampshire revitalized Hillary Clinton's demoralized campaign in 2008. But this time, she's trailing Bernie Sanders, from neighboring Vermont. She's planning to head Sunday to Flint, Mich., where a cost-saving decision led to poisonous levels of lead in the water of the poor, heavily black, rust-belt city. 
55% 38%
Upcoming debates
Feb. 11: Democratic debate

on PBS, in Wisconsin

Feb 13: GOP debate

on CBS News, in South Carolina

Feb. 25: GOP debate

on CNN, in Houston, Texas

Campaign 2016
State of the race

To keep reading, please enter your email address.

You’ll also receive from The Washington Post:
  • A free 6-week digital subscription
  • Our daily newsletter in your inbox

Please enter a valid email address

I have read and agree to the Terms of Service and Privacy Policy.

Please indicate agreement.

Thank you.

Check your inbox. We’ve sent an email explaining how to set up an account and activate your free digital subscription.