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Supreme Court confirms that temporary flooding caused by government actions can be a taking of property under the Fifth Amendment

Supreme Court confirms that temporary flooding caused by government actions can be a taking of property under the Fifth Amendment

The Supreme Court of the United States recently issued an important decision that clarified its interpretation of the Takings Clause of the Fifth Amendment. In the case of Arkansas Game & Fish Commission v. United States, 568 U.S. __ (2012), the Court considered whether government actions that cause recurring flooding must continue permanently to take property within the meaning of the Takings Clause. In a unanimous 8-0 opinion, the Justices concluded that flooding did not have to be permanent to be considered a taking. As the former Solicitor General, Justice Kagan was involved with this case at the Circuit Court of Appeals, so she did not participate in the decision. This blog post will discuss the facts and holding of the case, and explain its significance to landowners and their private property rights in eminent domain and condemnation law.  The Court’s full opinion can be found HERE.

The case involved the Clearwater Dam in Arkansas. The US Army Corps of Engineers built and controlled the dam upstream of the Dave Donaldson Black River Wildlife Management Area (the Management Area). The Management Area was used as a wildlife habitat, hunting and recreation grounds, and as a forestry resource where hardwood timber was regularly harvested. The Corps of Engineers changed the way that water was being released from the Clearwater Dam to benefit farming and commercial agriculture along the river system from 1993-2001. The modified water flow caused extended and recurrent seasonal flooding of the hardwood forests in the Management Area. The trees and their root systems were weakened by the continued flooding during a six-year period. Eventually a moderate drought caused 18 million board feet of timber to be degraded or destroyed due to he previous years of flooding.

The case was originally tried by the Court of Federal Claims, which considers cases filed by private claimants directly against the federal government. The trial judge awarded damages for the timber of $5.7 million. The Court of Appeals for the Federal Circuit reversed the judgment and ruled that flooding claims were different than other takings cases. It held that a takings claim would stand “only if the flooding is ‘permanent or inevitably recurring.'”

The Supreme Court recognized that takings cases tend to be rather dependent upon the specific facts of each case: “We have recognized … that no magic formula enables a court to judge, in every case, whether a given government interference with property is a taking … [, and our cases have] recognized few invariable rules in this area.” The Court went on to summarize some of its prior cases to illustrate that “most takings claims turn on situation-specific factual inquiries.” In particular, the Court cited a 1917 case where it observed that regular and recurrent flooding can give “rise to a takings claim no less valid than the claim of an owner whose land was continuously kept under water.” The Court also discussed prior decisions where flooding did not equate to a taking, illustrating the nuance and absence of any absolutes.

The Justices also recapped a series of World War II era cases involving temporary takings that required compensation where there was “a direct and immediate interference with the [owner’s] enjoyment and use of the land.” While these later cases were not specific to flooding situations, they did expand and explain a more detailed description of how temporary impacts would be viewed in an eminent domain case brought under the Fifth Amendment’s Takings Clause.

The federal government advanced several arguments to persuade the Court. It mainly relied on precedent from two flooding cases from before World War II. The Justices distinguished these cases on their facts. They also observed that those cases predated the line of decisions that applied to temporary takings, even though they were factually relevant.  Whether it applied to a flooding case or other facts, the requirement that a taking be permanent “has been superseded by subsequent developments in our jurisprudence”, the Justices wrote.

The most telling aspects of the Court’s decision emphasize that there are few absolute rules in understanding a takings case. “Flooding cases, like other takings cases, should be assessed with reference to the ‘particular circumstances of each case,’ and not by resorting to blanket exclusionary rules.” Furthermore, a taking case must be reasonably foreseeable, intentional, and causally related to the government’s action to require just compensation under the Constitution. The decision also noted that the character of the land and the owner’s “reasonable investment-backed expectations” regarding the land’s use are vital in any case. These details can be affected by individual state laws, as well as the broader Fifth Amendment principles.

In the final analysis, the holding in this case is unmistakably clear: “We rule today, simply and only, that government- induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.” Because the lower court had ruled that the flooding had to be permanent, the Supreme Court reversed its decision.
For any eminent domain case, this most recent opinion by our nation’s highest court offers a good summary of considerations to determine whether it rises to a compensable taking:

1) There are no absolute rules – each case will depend on the particular facts.
2) There must be a direct and identifiable interference of the owner’s enjoyment and use of their property.
3) The impairment on the owner’s property rights should be foreseeable from and causally related to the government conduct.
4) Property that is taken intentionally by the government is more likely to be considered a taking.
5) The interference with private property rights should be substantial and not merely incidental to be a compensable taking.
6) The duration and severity are an important part of the calculus.
7) The character of the property, and the owner’s distinct investment-backed expectations for the land’s use will affect the analysis, and this may be determined by state law.

Even with the benefit of a seemingly clear criteria like these, it can remain surprisingly difficult to determine what government activities will be found to be a taking under the Constitution. Consider that four highly experienced federal judges were equally divided in on the facts presented in this case. Likewise, the Court’s review of its previous flooding cases show that there are no easy conclusions even when the law is applied to a narrow factual category. Not every case of flooding can even be automatically thought of as a taking, especially where the inundation is less than permanent. The real lesson is that it takes the knowledge and expertise of an experienced eminent domain attorney to understand and properly analyze the issues facing a landowner trying to protect their property rights.

Sever Storey is a firm that focuses exclusively on eminent domain, condemnation and the protection of landowners and their property rights – we can help you to understand what the law allows, and how it can protect you. Contact our firm to discuss your potential case, whether your land is being affected by a utility company taking, a pipeline or power line project, or by road and highway work by a Department of Transportation. Let us explain how we can help!

–Shiloh Daum, Attorney at Law

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