Supreme Court rules government not immune under takings clause for temporary man-made floods

[JURIST] The US Supreme Court [official website] released a unanimous opinion Tuesday in Arkansas Game & Fish Commission v. United States [opinion, PDF; JURIST report] on the Federal government's immunity under the Takings Clause [Cornell LII backgrounder] of the Fifth Amendment [text]. The decision held that the government does not receive automatic immunity under the Takings Clause when creating a temporary flood that damages others' property. The opinion was delivered by Justice Ruth Bader Ginsburg;

There is thus no solid grounding in precedent for setting flooding apart from all other government intrusions on property. And the Government has presented no other persuasive reason to do so. Its primary argument is of the in for a penny, in for a pound genre: reversing the decision below, the Government worries, risks disruption of public works dedicated to flood control. "[E]very passing flood attributable to the government's operation of a flood control project, no matter how brief," the Government hypothesizes, might qualify as a compensable taking. To reject a categorical bar to temporary-flooding takings claims, however, is scarcely to credit all, or even many, such claims. It is of course incumbent on courts to weigh carefully the relevant factors and circumstances in each case, as instructed by our decisions.
The case was remanded to the US Court of Appeals for the Federal Circuit [official website] for determining the case on the merits. Justice Elena Kagan did not participate in the decision.

The Arkansas Game & Fish Commission brought this action against the federal government, alleging that the US Army Corps of Engineers [official websites] caused increased flooding on one of its properties, which in turn damaged timber. The commission claims the damaging of timber on its property constituted a taking for which it deserved compensation, and the US Court of Federal Claims [official website] agreed and awarded damages of more than $5.6 million. The US Court of Appeals for the Federal Circuit, however, overturned [opinion] that ruling, saying that the flooding did not constitute a taking because it was only temporary and did not permanently take over the land.

 

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