Opening the Flood Gates?: U.S. Supreme Court Holds That Takings Clause Covers Temporary Flooding

When government actions cause flooding of your land, does it constitute a “taking” that triggers the Fifth Amendment’s requirement of “just compensation?” Supreme Court precedent dating back to 1872 teaches that when the flooding is permanent, such as when a new dam creates a lake, a compensable taking has occurred. But what if the flooding is only temporary? Can that constitute a taking? The Federal Circuit said, “Never.” In Arkansas Game and Fish Commission v. United States, the Supreme Court disagreed, and said, “Sometimes.”

The case has its roots in 1993, when the U.S. Army Corps of Engineers changed the way it operated a dam located upstream from a wildlife management area owned by the Arkansas Game and Fish Commission. Departing from a practice that went back to the dam’s construction in 1948 and which was reflected in its Water Control Manual (Manual), the Corps — at the request of downstream farmers who desired a longer harvest time — slowed the rate at which it released water from the dam during the fall. As a result, instead of short-term flooding that receded quickly, the wildlife management area experienced extensive flooding that would last well into the following spring and summer. Each year from 1994 through 2000, the Corps decided to continue this new practice. The downstream farmers were happy, but the Commission, which repeatedly objected to the Corps’ new mode of operating the dam, was not. The Corps ultimately ceased the practice in 2001.

The Commission sued the United States in the Court of Federal Claims in 2005, alleging that the Corps’ temporary deviations from its Manual constituted a compensable taking. The Commission pointed to the cumulative impact of the extensive flooding of the wildlife management area, including destruction of timber and terrain changes that required expensive reclamation measures. The Court of Federal Claims eventually awarded the Commission $5.7 million. On the Corps’ appeal, however, the Federal Circuit reversed, reading several Supreme Court cases as holding that government-induced flooding can give rise to a takings claim only if the flooding is “permanent or inevitably recurring.”

In a unanimous opinion authored by Justice Ginsburg (Justice Kagan did not participate), the Supreme Court did not read its own precedents the same way. The cases cited by the Federal Circuit — Sanguinetti v. United States and United States v. Cress — did not require the result reached by the Appellate Court. Most importantly, language in Sanguinetti to the effect that flooding must be permanent to be compensable was not dispositive to that case, which involved an unpredictable, one-time flood that was held not to constitute a taking. Moreover, Sanguinetti, decided in 1924, predated a number of cases stretching from the 1940s to the 1980s that held that temporary takings — as when the government took temporary possession of a property during World War II — can be compensable. Thus, the holding in Cress that “inevitably recurring” flooding can result in a taking did not mark the outer limit of flood-related takings. Other kinds of temporary flooding could also give rise to takings claims.

But which other kinds? Here, the Supreme Court went back to the familiar, multi-factor, fact-sensitive test that characterizes most of its takings jurisprudence. In this case, those factors would include the duration of the flooding, the extent to which it was intended or foreseeable, the character of the land, the severity of the interference, and the owner’s “reasonable investment-backed expectations.” All of those factors, and perhaps others, would be considered by the Federal Circuit on remand.

Government action often creates winners and losers. In Arkansas Game and Fish Commission, as a result of the Corps’ decision to change its operation of the dam, the farmers won, and the Commission lost. The Takings Clause provides the Commission, and similarly situated losers, with a potential avenue to obtain compensation for their losses. The larger question, however, may be the extent to which the winners should foot the bill.