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Supreme Court Rules Temporary Flooding by Government May Be a Taking

This week, the U.S. Supreme Court reversed the Federal Circuit decision finding that temporary flooding of property instituted by the government could not be a taking and remanded the matter for further findings.In Arkansas Fish and Game Commission v United States (11-597), the Court reversed the Circuit’s conclusion that there can only be a taking if the flooding were permanent or inevitably reoccurring. Instead, the Court determined that “recurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability.”

Here, the Commission owns timber land upstream of a dam controlled by the Army Corps of Engineers (Corps). Between 1993 and 2000 the Corps modified and slowed the release of waters, so that downstream farms would have a longer growing season. However, this deviation from the adopted plan caused recurrent flooding of the upstream timber lands owned by the commission. As a result the Commission claims significant damage to those timber lands.

In reversing the decision finding that there could be no taking under these circumstances, the Court remanded the matter for further findings and limited its decision as follows:

“We rule today, simply and only, that government induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize,time is indeed a factor in determining the existence vel non of a compensable taking. See Loretto, 458 U. S., at 435, n. 12 (temporary physical invasions should be assessed by case-specific factual inquiry); Tahoe-Sierra, 535 U. S., at 342 (duration of regulatory restriction is a factor for court to consider); National Bd. of YMCA v. United States, 395 U. S. 85, 93 (1969) (“temporary, unplanned occupation” of building by troops under exigent circumstances is not a taking).
Also relevant to the takings inquiry is the degree to which the invasion is intended or is the foreseeable result of authorized government action. See supra, at 9; John Horstmann Co. v. United States, 257 U. S. 138, 146 (1921) (no takings liability when damage caused by government action could not have been foreseen). See also Ridge Line, Inc. v. United States, 346 F. 3d 1346, 1355–1356 (CA Fed. 2003); In re Chicago, Milwaukee, St. Paul & Pacific R. Co., 799 F. 2d 317, 325–326 (CA7 1986). So, too, are the character of the land at issue and the owner’s “reasonable investment-backed expectations” regarding the land’s use. Palazzolo v. Rhode Island, 533 U. S. 606, 618 (2001). For example, the Management Area lies in a floodplain below a dam, and had experienced flooding in the past. But the trial court found the Area had not been exposed to flooding comparable to the 1990’s accumulations in any other time span either prior to or after the construction of the Dam. See supra, at 4–5. Severity of the interference figures inthe calculus as well. See Penn Central, 438 U. S., at 130– 131; Portsmouth Harbor Land & Hotel Co. v. United States, 260 U. S. 327, 329–330 (1922) (“[W]hile a single act may not be enough, a continuance of them in sufficient number and for a sufficient time may prove [a taking]. Every successive trespass adds to the force of the evidence.”).”

-Steven Silverberg

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