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Argument preview: Duty to pay for flooding

At 11 a.m. on Wednesday, the Supreme Court will hold one hour of oral argument on the scope of the federal government’s duty — if any — to pay if it releases water from a river dam that causes temporary downstream flooding that damages property.  Arguing for the state agency in Arkansas Game & Fish Commission v. United States will be a commission lawyer, James F. Goodhart, of Little Rock.   Arguing for the federal government will be Deputy U.S. Solicitor General Edwin S. Kneedler.   The case will be heard by an eight-member Court, since Justice Elena Kagan has taken herself out of the case, presumably because of a prior involvement with it when she was U.S. Solicitor General before joining the Court.



The Constitution’s Fifth Amendment provides that, if the government takes control of private property to put it to some public use, it must pay the owner a fee, calculated to reflect the value that the owner has lost because of the government “taking.”  The idea behind this duty is that, if there is to be a public benefit from government takeovers of private property, the owner should not bear the burden of that alone; the taxpayers should share in the burden through the payment of tax revenues that cover the compensation.  A new case before the Court, Arkansas Game & Fish Commission v. United States, seeks to sort out when the federal government will be required to pay compensation for damage done by flooding, when it releases water from a river-regulating dam to relieve pressure or to aid in downstream uses of the stream.

Whenever the government builds a dam astride one of the nation’s rivers, it adopts a water control plan.  Because the lake that forms behind a stopped-up river has water flowing into it almost continuously, the operator of the dam must release water from it from time to time.  Sometimes, water releases are timed to aid in downstream activities, such as irrigation or recreational use.  Dams also serve to tame raging rivers that previously may have caused damaging floods.  Under a dam’s water control plan, the operator spells out the rate and timing of releases, how safety will be maintained, and how the dam is to operate during those times.  It has long been recognized that the flooding of private property as a result of government action is the kind of “taking” that should result in compensation to the owner of the flooded property.

The question now coming up in the Court is whether the government must pay if the flooding from water releases is only temporary — that is, flooding occurs, but then the water recedes.   In other words, the case tests whether the government is exempt from a compensation obligation if it does not permanently flood an area with releases from a dam.   There is no doubt that it must pay for permanent flooding, when that results from intentional government action in operating a dam.   Aside from flooding, there is no doubt that the government must also pay for even a temporary taking that results from official action, with compensation adjusted for the temporary nature.  But the new case will turn on whether there is an exception to that when temporary flooding is involved.

In the 1940s, the federal government built the Clearwater Dam on the Black River that flows from Missouri into Arkansas.  It was built expressly to control the Black’s water flows to reduce flooding.   From time to time, the Corps of Engineers opens gates in the dam to let water flow downstream, to help farmers, boaters and fishery interests.  No matter how the Corps manages these releases, it apparently does not have the ability to completely eliminate all flooding; it can reduce the floods, but not end them.   In 1953, the Corps adopted a water control plan for the dam, with a schedule of releases, providing for a quick release during the growing season to reduce flooding above the dam, so that farmers could work their fields longer into the season without their lands being inundated.  The plan also provided for some deviations from those scheduled releases, and those are at issue in this case.

At a distance 115 miles downstream from Clearwater Dam, the state of Arkansas operates the Dave Donaldson Black River Wildlife Management Area.  It is a prime area for duck hunters, and also provides a source of lowland timber that the state harvests and sells for public revenues.  The area spans 23,000 acres, and lies on both sides of the Black River.   The operator of the area, the Arkansas Game & Fish Commission, sued the Corps of Engineers, contending that for a period of six years — from 1993 through 1998 — the releases caused lowland flooding, ultimately destroying trees or weakening them so that they died during the following drought years of 1999 and 2000.

The Corps stopped the deviations from the release plan in 2001, and abandoned plans to permanently change the plan after officials concluded that, if they did so, there was a clear prospect of danger to entities and the environment.   The lawsuit contended that the government knew the releases would cause flooding and the resulting damage, but went ahead heedless of the consequences.   The case went to a special federal court, the Court of Federal Claims, which ruled for the Arkansas state agency and awarded it a payment of $5.6 million for the lost timber, plus an additional $178,428 for a program to regenerate the degraded forestry habitat virtually destroyed by the flooding.

The government appealed to the next higher specialized court, the Court of Appeals for the Federal Circuit, which generally rules on money claims against the federal government.  It overturned all parts of the award to the commission, finding that the flooding eventually had stopped, and that flooding that is only temporary does not qualify for compensation, based on past precedents on water releases.  That court split seven to four in refusing to reconsider the case en banc.

The Commission took the case on to the Supreme Court, raising a single question of whether recurring flooding caused by government action is a taking eligible for compensation, even if the flooding is not permanent.  It complained that the Federal Circuit had “carved out a whole category of physical invasions that the government can make without incurring liability under the Takings Clause….The Federal Circuit’s decision upends the Court’s bedrock standards and grants the government authority to repeatedly invade by flooding, no matter who it injures, no matter how much damage it permanently and foreseeably causes, and no matter what the other circumstances might be, so long as the government’s actions are deemed ‘only temporary.'”  The ruling is particularly threatening, the petition asserted, because the Federal Circuit has sole authority to decide such cases.

The petition drew the support of four other states, fish and wildlife advocates, conservative legal advocacy organizations, and trade groups for home builders and forest resource managers.

The federal government opposed Supreme Court review, arguing that the Federal Circuit got it right, and arguing that the Court had long taken the view that “mere temporary flooding episodes” are legally different from “the sort of continuous or inevitably recurring flooding that rises to the level of a taking.”   The Federal Circuit, this filing contended, had not adopted a hard-and-fast rule, but relied on the specific circumstances in this particular case.  It also argued that the case did not pose a clear-cut test of the takings issue, because it involved lingering disputes over expert testimony on the impact of the releases the government made as deviations from its water control plan.

The Court, however, granted review of the case on April 2, noting that Justice Kagan would not be taking part in the forthcoming decision.

Briefs on the merits

The Commission’s brief on the merits focused on its claim that the Federal Circuit Court had made its decision based upon the government’s intentions — whether to make the flooding permanent or temporary — and not on the loss to the Commission as the owner of the affected property.  Takings law, the brief insisted, must always focus on “the owner’s loss, not the taker’s gain.”   The Federal Circuit, it added, focused on each of the government’s water releases from the Clearwater Dam, as if they were isolated events that involved only a governmental choice about the extent of the flooding that would result.

The Commission contended that its loss due to the flooding was “massive and permanent,” and that the “flood invasions substantially preempted the use and enjoyment of the Commission’s property maintained as an important wildlife habitat….  It is apparent that these flood invasions pressed the property into public use even though the government eventually ended its invasive actions.”

Contrary to the Federal Circuit’s “categorical” holding, the agency brief said, the temporary occupation of private property as a result of government action has long been regarded as a taking too, and the owner is thus entitled to compensation.

As at the petition stage, the merits position of the Commission is supported by business interests, private property advocates, agricultural and forest interests, and conservative legal advocacy organizations.

The federal government’s brief on the merits insisted that the Supreme Court’s precedents on water releases have always drawn a distinction between flooding that causes “permanent physical occupation” and temporary releases that cause damage but are not permanent in duration.  “That distinction was firmly established nearly a century ago, and it permits a determination that there was no taking to be made without considering other factors that might, under other circumstances, bear on whether the government has taken private property.”

Congress, adhering to that distinction, has passed extensive flood-control legislation, and the Executive Branch has acquired land and made other decisions in keeping with that same distinction, the federal brief asserted.  It defended the distinction as “sound and practical,” on the premise that floodwaters do recede.  That is a particularly important factor, the brief added, in a situation such as that involved in this case, where the Arkansas property was already subject to flooding, and the government’s releases of water only added incrementally to that.

The Court, the government counseled, should not accept the suggestion of some of the amici supporting the Commission — that is, a flat rule that any flooding resulting from the operation of a government project must constitute a taking.  That, it added, is “too blunt an instrument to evaluate an issue as complex as downstream flooding resulting from the operation of a dam.”

The government position in the case is supported by a host of organizations representing local government, and by a group of professors specializing in property and water rights law.


If the law on takings from flooding as a result of water releases is as clear and definite as the Justice Department, and the Federal Circuit Court, have claimed, there is no explanation for the Court’s willingness to hear and decide this case.   If the law of flooding truly does draw a fundamental distinction between temporary and permanent invasions of water, then that would be an exception applying only to one kind of government activity, and it would seem that the Court would have seen no reason to examine this anew; it is a legal principle for only a limited context.   But the Court took the case, even with the risk that a four-to-four split (and the lack of a precedent) would result, so there are at least some Justices who appear to believe that the issue is an open one.

The Court has not been truly eager to sort out modern takings law, and steadfastly refuses to take cases on the subject when it is not clear that property owners have taken other available routes to protect their interests.  The Arkansas Game & Fish Commission, though, probably had no other potential remedies available to it, beyond a takings claim.   And that may be the distinguishing feature that attracted the Court to this case.

Whatever the rationale for granting review, however, the Court’s commitment to deciding whether the claimed temporary-permanent distinction does exist in the context of flooding very likely means that a clear answer is at least intended, if a majority can be assembled to do that.

This case, made simple

The Constitution guarantees owners of private property that, if the government takes over the property for its own public purposes, it must pay the owner something that represents its current market value if the property were to be sold.  A typical example is when the government wants to build a super-highway, and needs farmlands or urban property to build the ramps and the lanes.  But the government can “take” property in a variety of other ways.   One of those other ways occurs when the government physically occupies private property.  That occurs in the case now before the Court, involving a dam on the Black River that flows between Missouri and Arkansas.   To control water flows in the Black River, the government from time to time releases water from that dam.   This is considered to be a process of regulating the level of the river.

One consequence of those releases of water, however, has been to periodically flood lands downstream from the dam.   The Court is now considering whether the government has to pay the owners of a large wildlife habitat and timber-growing tract located in the state of Arkansas, where periodic flooding previously resulted from releases of water from the upstream dam.   A lower court has spared the government from having to pay, because it ruled that the constitutional obligation to pay only arises — at least in the context of flooding by government action — when the flooding is permanent, constituting a lasting physical “invasion” of property.











Recommended Citation: Lyle Denniston, Argument preview: Duty to pay for flooding, SCOTUSblog (Oct. 2, 2012, 6:00 PM),