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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.

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