December 04, 2012

Supreme Court Decides Arkansas Game and Fish Commission v. United States

On December 4, 2012, the U.S. Supreme Court decided Arkansas Game and Fish Commission v. United States, No. 11-597, holding that government-induced flooding of land, even if only temporary, can constitute a taking under the Takings Clause of the Fifth Amendment. The flooding need not be "permanent or inevitably recurring" to require just compensation.

The Arkansas Game and Fish Commission owns 23,000 acres of land, designated for a wildlife and hunting preserve, along both banks of the Black River in northeast Arkansas. Upstream 115 miles from the preserve, the U.S. Army Corps of Engineers operates the Clearwater Dam. Each year between 1993 and 2000, the Corps deviated from its standard release of water from the Dam. These deviations caused significantly more flooding in the preserve during tree-growing seasons. The Commission filed a suit in 2005, alleging that the sustained flooding caused by the deviations constituted a taking under the Fifth Amendment. The Court of Federal Claims agreed, finding that six consecutive years of abnormal flooding cumulatively resulted in "catastrophic mortality" of timber and awarding the Commission $5.7 million in compensation. In a 2-1 decision, the Federal Circuit reversed. While recognizing that temporary government action may sometimes implicate the Fifth Amendment, it concluded that government-induced flooding is "different" under Supreme Court jurisprudence, generating a takings claim only in cases of "permanent or inevitably recurring" flooding.

The Supreme Court reversed, declining to sanction "a blanket temporary-flooding exception to our Takings Clause jurisprudence." The Court first recognized that "most takings claims turn on situation-specific factual inquiries." Further, the Court noted that, under its precedent, both government-induced flooding and temporary government action could give rise to takings. The Court thus reasoned that "government-induced flooding of limited duration may be compensable." Although two previous cases had stated that flooding constituted a taking if it resulted in "an actual, permanent invasion of the land," the Court distinguished them based on subsequent developments in its temporary-takings jurisprudence and declined to read the cases as "adopt[ing] a ‘flooding-is-different' rule." Finally, the Court rejected the government's concern that every passing flood might thus qualify as a taking, stating that "today's modest decision augurs no deluge of takings liability." The Court remanded to the Federal Circuit to address the government's relevant factual challenges to the decision by the Court of Federal Claims.

Justice Ginsburg delivered the opinion for a unanimous Court. Justice Kagan took no part in the consideration or decision of the case.

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