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October Term, 2012

Decemberr 4, 2012

Today the Supreme Court issued one decision, described below, of interest to the business community.

Takings Clause—Flooding

Arkansas Game & Fish Commission v. United States – No. 11–597

The Fifth Amendment to the U.S. Constitution provides that private property shall not be taken for public use without just compensation. The Supreme Court held today in Arkansas Game & Fish Commission v. United States that the temporary nature of government-induced flooding of private property is not necessarily a bar to a takings claim.

Petitioner, the plaintiff below, owns the 23,000-acre Dave Donaldson Black River Wildlife Management Area along the Black River in Arkansas. The Clearwater Dam is located 115 miles upstream, in southeast Missouri. Petitioner filed a lawsuit alleging that, between 1993 and 2000, the Army Corps of Engineers improperly deviated from a 1953 operating plan for the dam, which caused increased flooding and damaged trees in the wildlife-management area. The Court of Federal Claims concluded that the United States had taken a temporary flowage easement over petitioner’s property, and awarded nearly $6 million in damages. A divided panel of the Federal Circuit reversed, holding that because the damage was temporary, it was not a taking but a tort (for which the United States is generally immune from liability).

In an opinion by Justice Ginsberg that was joined by all members of the Court except for Justice Kagan (who took no part in the decision), the Supreme Court reversed the Federal Circuit. The Court held that “recurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability.” Slip Op. at 2. As the Court explained, “[b]ecause government-induced flooding can constitute a taking of property, and because a taking need not be permanent to be compensable, our precedent indicates that government-induced flooding of limited duration may be compensable. No decision of this Court authorizes a blanket temporary-flooding exception to our Takings Clause jurisprudence, and we decline to create such an exception in this case.” Id. at 9. Thus, “[f]looding 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.” Id. at 12.

The Court remanded the case to the Federal Circuit to consider the government’s challenges to several of the Court of Federal Claims’ factual findings (including those relating to causation, foreseeability, substantiality, and amount of damages), which the Federal Circuit did not originally address because its decision rested entirely on the temporary duration of the flooding. Id. at 15.

The Supreme Court’s decision in this case will be important to property owners affected by flood-control policies of the Army Corps of Engineers and other governmental agencies. The decision also reaffirms the viability of temporary-takings claims.

For more information about the issues described in this Decision Alert, please contact Tim Bishop at +1 312 701 7829.

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