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When government floods your land, it can be liable for a taking — even if the flooding is intermittent
Arkansas Game & Fish Comm’n v. United States
Contact: Brian T. Hodges
Status: Victory! The U.S. Supreme Court issued a favorable decision on Dec. 4, 2012. PLF's amicus brief on remand filed in the Federal Circuit Court of Appeals on Apr. 1, 2013.
Can government acts that result in intermittent flooding over a period of eight years give rise to a claim for damages for a temporary taking?
As amicus in support of the Arkansas Game and Fish Commission, PLF argues that such acts can indeed create a liability for a taking. The Supreme Court’s decision in First English Evangelical Lutheran Church v. City of Glendale established that compensation for a temporary taking is required when restrictive regulations deprive an owner of the use of land for a period of time. The same rule should apply to physical invasions of property, such as flooding.
The facts and procedural background of the case are as follows:
The U.S. Army Corps of Engineers manages the flow of water from Clearwater Dam in Missouri. The Arkansas Game and Fish Commission operates 23,000 acres of forest and recreational land downstream from the dam. Between 1993 and 2000, the Corps changed its water release policy in a manner that benefitted upstream farmers, but flooded AGFC’s downstream property. So, for eight years, the Corps inundated AGFC’s land during the critical growing seasons, destroying large portions of the mature forests. The Corps stopped flooding AGFC’s land in 2001.
AGFC successfully sued the United States for a physical taking, receiving a $5.8 million judgment from the Court of Federal Claims for the value of lost timber and reforestation. But a panel of the Federal Circuit Court of Appeals reversed, 2-1, holding that damages caused by temporary flooding can never constitute a taking. Since the Corps’ actions only inundated AGFC’s property for eight years, AGFC had suffered only a tort, not a taking. A divided court (4-3-4) denied AGFC’s petition for rehearing, so the commission filed a petition for certiorari with the U.S. Supreme Court. The petition was granted on April 2, 2012.