From cases on houseboats to flooding issues, the U.S. Supreme Court has had more than its fair share of water on the brain during the first week of the new term.

The justices on Wednesday waded into an unusual property rights case involving whether controlled flooding is a permanent or temporary taking. The case is unusual because the Roberts Court has had little interest in takings cases in the last seven years, and also because of the flooding question.

And as with nearly all takings cases that come before the Supreme Court, this case is being watched closely by business and conservative organizations as well as by local governments and environmental groups.

In Arkansas Game & Fish Commission v. U.S., the state agency argues that the U.S. Army Corps of Engineers committed a taking without just compensation in violation of the Fifth Amendment when in 1993 — and for six years thereafter — it deviated from a 1953 water control plan at the Clearwater Dam on the Black River in Missouri and flooded the commission’s bottomland hardwood forest. The flooding killed or degraded more than 100,000 trees. The commission’s wildlife management area of about 23,000 acres is 115 miles downstream from the dam.

The commission won at trial in the U.S. Court of Federal Claims, which awarded damages of nearly $5.8 million. However, the judgment was reversed by a 2-1 panel of the U.S. Court of Appeals for the Federal Circuit. The appellate court held that because the controlled releases of water were temporary, and only permanent flooding qualifies for compensation.

In Wednesday’s arguments, the commission’s counsel, James Goodhart of Little Rock, Ark., told the justices that the appellate court applied the wrong rule.

“First, the United States must provide just compensation when its direct physical invasion substantially intrudes upon a landowner’s protected property interest, regardless of the particular mode or duration of that invasion,” he argued. “And, second, the Federal Circuit’s decision conflicts with fundamental guarantees that the Takings Clause is intended to preserve, and, therefore, is manifestly unjust.”

Justice Stephen Breyer noted that he had counted 11 precedents that seem to hold or support the proposition that when the flooding is temporary, a trespass — a tort — has occurred, and when it is permanent, there is a taking. He counted zero holding the opposite and asked Goodhart for cases that supported his argument. Goodhart offered one that seemed to satisfy Breyer.

“The problem with a flood is you don’t take all the land,” said Breyer. “You send some stuff in, and the stuff is there for a while, and then it comes back, and — it’s called water.”

Justice Sonia Sotomayor said the problem with this case was that flooding was going to occur naturally. “The government generally builds dams to control that flooding to the benefit of all of the interests along its affected route. And at some point, either the government is going to make a decision that’s going to help someone and potentially hurt someone. And the question is, is the government in all of those situations going to be subject to litigation?”

Goodhart was pressed by Justice Anthony Kennedy for “an operable baseline” to use in defining whether there has been a taking. Goodhart, however, said there may not be a bright-line rule. “It is the analysis here that this Court has used throughout its physical takings cases that will separate the torts from the takings.” That analysis, he said, asks: “Was there a direct physical injury? Did it result in substantial intrusion on the commission’s property? If so, the Just Compensation Clause is self-actuating and there should be just compensation.”

Goodhart’s opponent, Deputy Solicitor General Edwin Kneedler, told the justices that the flood releases were not a taking “because this is a classic example of the government adjusting the benefits and burdens. This is why the government was invited in to construct these projects because along the river there was very serious flooding.”

The government, he argued, cannot pay compensation every time it makes a choice between benefitting some and burdening others. The releases made in this case, he said, were done to protect farmers along the river.

Some justices, however, also were not satisfied with Kneedler’s argument that there was no taking because the damage to the commission’s land was the incidental consequence of the flood control project and the water releases were not directed at the commission’s land.

“Basically, you’re saying once a dam is built, no downstream owner has a claim; or, you’re building an exception from when the claim can be applied to a downstream owner?” said Sotomayor. Under the court’s precedents, Kneedler replied, “There would be no claim downstream.”

And Kennedy reacted, “It’s like the old moral of refuge that rocket designers take: I make the rockets go up; where they come down is not my concern.”

However, Kneedler said, “The Corps has to manage the river without the threat of liability.”

Marcia Coyle can be contacted at