Federal Flood Water Intrudes on Private Property

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Thursday, February 7, 2013

Businessman head above waterIf the federal government flooded your property and destroyed 18 million board feet of oak timber in the process, you might expect to be compensated for the loss. Yet, in Arkansas Game and Fish Commission v. United States, the government argued—and a lower court agreed—that, because the flooding was only temporary, no compensation was owed. On December 4th, in the first takings case since John Roberts became the Chief Justice, the Supreme Court unanimously rejected this argument and ruled in favor of the property owner. Though narrow, the holding is a signal of the Supreme Court’s reluctance to further erode the Takings Clause.

The flooding occurred on the 23,000-acre Black River Wildlife Management Area owned and operated by the Arkansas Game and Fish Commission. The property lies on both sides of the Black River, 115 miles downstream of the U.S. Army Corps of Engineers’ Clearwater Dam near Piedmont, Missouri. From 1993 to 1998, the Corps deviated from its official Water Control Manual and released excess water from behind the dam. These releases, which caused more severe and more sustained flooding than had previously been recorded in the area, weakened and eventually killed off huge swaths of hardwood timberlands on the state’s property.

The case was first litigated in the Court of Federal Claims, which ruled in favor of the Commission and awarded $5.5 million for the timber and $178,428 to regenerate forest habitat on the property. The federal government appealed to the Court of Appeals for the Federal Circuit, which overturned the ruling and both financial awards on the premise that government-induced flooding can only support a takings claim when the flooding is permanent or inevitably recurring.

The Supreme Court has previously held that federal government action that permanently floods private property constitutes a taking of that property and requires compensation. Indeed, the first inverse condemnation case ever decided by the Court was Pumpelly v. Green Bay Co., an 1872 flooding case in Wisconsin. More recent cases that do not involve flooding have also established the government’s duty to compensate private landowners for temporary takings, with the compensation paid reflecting the takings’ temporary nature.

The question in this case was whether the Supreme Court would carve out an exception to the Takings Clause for government actions that only temporarily flood private property. According to the federal government’s brief, previous opinions by the Court had already done so by using terms such as “permanent” and “inevitably recurring” to describe flooding that constituted compensable takings. The government’s attorney claimed during oral arguments that, when the flooding is only temporary, federal agencies can adjust the burdens and benefits of owning riverfront property without judicial oversight, even if the resulting damage to private property is permanent.

Admonishing the government’s attorneys for inferring too much from non-dispositive portions of previous opinions, Justice Ginsburg explained, “We do not read so much into the word ‘permanent.’” According to Ginsburg, there is “no solid grounding in precedent for setting flooding apart from all other government intrusions on property.” “Flooding cases,” the opinion reads, “like other takings cases, should be assessed with reference to the ‘particular circumstances of each case,’ and not by resorting to blanket exclusionary rules.”

By reversing the Federal Circuit’s opinion that sought to create a blanket exception to the Takings Clause, the Supreme Court’s ruling has broader implications than just flooding; it affirms the notion that “when the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner.” The Court’s opinion holds federal agencies accountable for invasions of private property, even the temporary ones, and this is an important victory for property rights because it reduces the potential for government overreach and other property rights abuses.

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Reed Watson is the executive director at PERC. He is also the Director of PERC's Enviropreneur Institute, an educational program and launchpad for environmental entrepreneurs. Watson’s research focuses on the implementation of market-based solutions to natural resource conflicts. With Terry Anderson and Brandon Scarborough, he coauthored Tapping...
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