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Opinion analysis: Some advice about “takings”


The Supreme Court, insisting that it was issuing only a “modest decision” that basically said nothing new, nevertheless told lower courts on Tuesday not to be deterred from finding that the government owes compensation for interfering with private property — and especially not to be put off by prophesies of doom for a government’s ability to act.  That claim is often made, the Court noted, but it should not lead a court to give a government agency a “blanket exemption” from paying when it seizes private property — even if the seizure is only temporary but yet does significant damage.

The unanimous ruling, in the case of Arkansas Game and Fish Commission v. United States (docket 11-597), gave that state agency a chance to defend in a lower court a $5.7 million compensation award it had once received, but then lost.  If it can prove its case aganst a series of challenges still open to the federal government, the award would pay for harms done to the Commission’s timber-growing and wildlife management area that underwent years of damaging floods because the U.S. Corps of Engineers opened a dam’s gates repeatedly to release more water than usual to flow downstream.  (The decision came on an 8-0 vote, with Justice Elena Kagan recused.)

As a legal matter, this is what the Court explicitly decided: when the government makes a decision to release water from a retaining dam, it can be sued even if the downstream flooding is temporary in duration, provided it causes sufficient damage that is traced to the decision to release.   The federal government had urged the Court to make an explicit exemption in the field of “takings” law for flooding by government water releases, if the flooding was only temporary.

Arkansas Game had a $5.7 million award nullified by the Federal Circuit Court because the flooding its land had experienced repeatedly from 1993 through 2000 was not permanent.  The extra water flowed downstream, rose on the Commisson’s land, and then receded, the Circuit Court found.  In “takings” law, it ruled, flooding has to be permanent in order to justify a compensation award.  The government had defended that conclusion before the Justices.  The government relied upon the word “permanent” in a couple of prior Supreme Court rulings dealing with government-induced damage, but the Court on Tuesday said the word was taken out of context and given too much separate emphasis.

It had ruled repeatedly, the Court said in the opinion written by Justice Ruth Bader Ginsburg, that some “takings” must lead to compensation even if they last for only a temporary period.  What matters, Ginsburg wrote, is not the duration, but a case-by-case analysis of all of the factors that help resolve whether damage was done and whether it was severe enough to constitute a seizure of the property for government purposes.  The opinion listed some of those factors: the length of time the seizure and damage last, whether the “invasion” was intended or was “the foreseeable result” of action the government had the power to take, the nature of the property involved, and what the owner’s expectations about owning the land were.

The Court did not provide in this ruling answers to any of those questions, saying that they were not raised in this case because the Federal Circuit had focused only on the permanent vs. temporary rationale.  They may still be open for consideration in the case when it returns to lower courts, Ginsburg wrote.

When the case does return there, the opinion noted, the government can renew any challenges that have not been forfeited along the way during the litigation.  That includes the individual factors, as well as the government’s argument that a “taking” had not occurred in this case because the downstream flooding was not aimed at any particular landowner, and thus did not amount to “occupation” of designated land.  The opinion also said the Court was not deciding any issue that might remain over the rights that the Commission may have under state water-rights law.

What did appear to be somewhat novel about the opinion was the mini-lecture that Justice Ginsburg offered to what her opinion called “the slippery slope argument” made by the government lawyer: that is, that a ruling against the government in this case would lead to a lawsuit any time the government released any water from any river project and flooding resulted.  “To reject a categorical bar to temporary-flooding takings claims,” Ginsburg wrote, “is scarcely to credit all, or even many, such claims.”  After a prior ruling in a temporary occupation case, she added, “the sky did not fall…and today’s modest decision augurs no deluge of takings liability.”

This decision, in plain English:

The federal government has built many dams that stand astride rivers, and from time to time it will reopen the gates on them to let some of the waters flow downstream.  That is to relieve pressure on the dam, as more waters flow into it, or it is designed to help people downstream — farmers and boaters, for example.   Sometimes, and it can be predictable, the releases cause flooding to downstream property.  It has long been understood that, when the government’s water releases cause permanent flooding, it has to pay the owners of the land for that harm.

But the case the Court decided Tuesday did not involve permanent flooding.   After a series of water releases between 1993 and 2000 from a dam the Corps of Engineers operated in Missouri, the water downstream rose significantly and did extensive damage to the timber-growing operation on lands owned by the Arkansas Game and Fish Commission, but then the water receded.   The Commission had a large timber and wildlife management area located on the Black River, and it was hit hard by the flooding.  It happened every year during that period, and the Commission had tried to persuade the Corps of Engineers not to continue with the unusually large releases.

Ultimately, the Commission claimed that the Corps had seized its property, and, under the Fifth Amendment, it was entitled to be paid for the harms done.  One court awarded it $5.7 million, but another court took that away, ruling that the government does not owe property owners for releases from an upriver dam, if the flooding is temporary.   The Supreme Court, in a unanimous ruling, rejected that conclusion, and ruled that, if the damage is severe enough, the mere fact that the flooding was temporary does not spare the government the duty of paying compensation.

Justice Ruth Bader Ginsburg wrote the opinion for the Court, saying that the Court had issued a number of decisions allowing compensation for temporary invasions of private property, so it was not deciding anything new this time in finding that the government had no flat exemption to that obligation.  It is not decisive that the flooding of the Game Commission’s land was only temporary, the Court decided.  The Court did not go so far as to rule that the Game Commission is now entitled to be paid the $5.7 million it had been awarded earlier.  The case is to go back to lower courts, where the federal government still has some legal arguments to make to try to avoid having to make payment.

Recommended Citation: Lyle Denniston, Opinion analysis: Some advice about “takings”, SCOTUSblog (Dec. 4, 2012, 2:59 PM),