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Property rights advocates scored a victory in the U.S. Supreme Court on Tuesday when the justices unanimously ruled that temporary, controlled flooding of land by the federal government may be a taking requiring compensation.  “We rule today, simply and only, that government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection,” wrote Justice Ruth Bader Ginsburg in an 8-0 decision. (Justice Elena Kagan did not participate in the case.) Arkansas Fish & Game Commission v. U.S. was one of less than a handful of takings cases considered by the Roberts Court since 2005. As is typical of takings cases, this one triggered keen interest from local governments, business and conservative legal organizations. The case stemmed from a lawsuit by the commission charging that the U.S. Army Corps of Engineers committed a taking without just compensation in violation of the Fifth Amendment when it deviated in 1993 from a 1953 water control plan at the Clearwater Dam on the Black River in Missouri and flooded—every year for six years—the commission’s bottomland hardwood forest. The controlled flooding killed or degraded more than 100,000 trees on a portion of the commission’s land. The commission’s wildlife management area of about 23,000 acres is 115 miles downstream from the dam. The U.S. Court of Federal Claims found a compensable taking and awarded damages of nearly $5.8 million; however, that judgment was reversed by a 2-1 panel of the U.S. Court of Appeals for the Federal Circuit. The appellate court held that only permanent flooding qualifies for compensation. The Supreme Court rejected the appellate court’s categorical exemption of temporary flooding from the takings clause as inconsistent with the justices’ precedents. Ginsburg noted that the Supreme Court first ruled that government-induced flooding could constitute a taking in 1872, and later recognized that seasonally recurring flooding also could be a taking. The government, she added, offered “no persuasive” reason to set apart flooding from all other government intrusions on property. “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,” wrote Ginsburg. “‘[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.” In response, however, she predicted “no deluge” of takings liability. The opinion said there was no magic formula to enable a court to judge, in every case, whether a government interference with property is a taking. But the Court’s opinions on temporary physical invasions of property by the government recognize certain factors to consider: time, the degree to which the invasion is intended or is the foreseeable result of authorized government action, the character of the land at issue, the severity of the interference and the owner’s “reasonable investment-backed expectations.” James Goodhart, the commission’s chief legal counsel who argued the case, said, “We think the Court sent a strong message about what we had been litigating over for seven years now—the United States can’t rely on its argument that flooding is somehow set apart from the Fifth Amendment as compared to other intrusions on property. We certainly have confidence on remand that the trial judgment and other issues will be addressed and we feel the outcome will be in our favor. We cross appealed and are seeking additional damages, another $5 million in remedial damages.” Brian Hodges of the Pacific Legal Foundation, which filed an amicus brief supporting the commission, applauded the ruling in a statement, saying, “By expressly rejecting any distinction between temporary and permanent government intrusions on private property, today’s decision closes a dangerous loophole in takings law that could be exploited to allow the government to avoid its obligation to pay just compensation when it takes private property. Simply put, the Takings Clause does not come with a stopwatch.” The decision is “quite modest,” said John Echeverria of Vermont Law School, who authored an amicus brief supporting the government on behalf of associations of counties, cities and municipal lawyers. And, he added, it responds to a problem created by the Court’s gradual expansion of its takings jurisprudence over the last several decades. “The Court pretty clearly had adopted a per se rule that a permanent inundation was required for a taking, but over the last 20 to 30 years, in several regulatory takings cases, it embraced the idea a temporary incursion or regulatory restriction can amount to a taking under certain extreme circumstances,” he explained. “This older per se rule was out of step with the rest of the takings jurisprudence. The Court is bringing the rule governing flooding into alignment with the rules governing every other kind of takings.” The decision did adopt the so-called Penn Central analysis for these temporary takings that his clients had urged, he said. “The petitioner and many of its amici sought a much broader rule of liability. I would say the court opted for the middle course.”  

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