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A supreme taking

Updated: Jun 6, 2020

Holding for a unanimous Court, Justice Ruth Bader Ginsburg wrote, “There is thus no solid grounding in precedent for setting flooding apart from all other government intrusions.”

On December 4, 2012, a unanimous U.S Supreme Court handed down a ruling with potentially significant impact for federal flood control efforts, particularly those administered by the U.S. Army Corps of Engineers. The case involves a wildlife area in Arkansas managed by the Arkansas Game and Fish Commission (AGFC). It lies about 115 miles downstream of the Clearwater Dam on the Black River in Missouri.

For several years on an ad hoc and temporary basis, the Corps approved deviations from its Water Control Plan in releasing water from the Clearwater Dam. This caused a temporary increase of flooding on the Commission’s land, which damaged the forested trees.

The AGFC filed suit for a taking under the 5th Amendment. After an early court victory, which included a $5.8 million award, the AFGC suffered a setback when the Federal Circuit for the District of Columbia reversed its initial victory. The court held that government induced flooding may give rise to a Takings Claim only if the flooding was permanent or inevitably recurring.

Yesterday’s Supreme Court decision reverses that ruling. The Court held, “We rule today, simply and only, that government-induced flooding temporary in duration gains no automatic exemption from the Takings Clause inspection.”

The Court’s opinion also stated that a takings analysis must be performed considering “the duration of the interference, whether the invasion was foreseeable when the government acted, the severity of the interference, and the degree to which it upsets the property owner’s reasonable expectations regarding the land’s use.”

My analysis:

Government Impact from this Decision. The Army Corps of Engineers has historically purchased appropriate real estate interest in downstream lands for two reasons:

  1. When the operation causes frequent and recurring flooding; or

  2. The downstream landowner might use the property in a way that could effectively interfere with the operation of the project.

Now the Corps must consider the additional factors enunciated in the Court’s decision, including the potential additional real estate costs concerning the numerous downstream landowners from “Takings” due to temporary flooding.

It’s important to remember that in developing such projects, the Corps analyzes the Benefits of the project (damages prevented) and the Costs (which include real estate costs). From this analysis, the Corps develops a Benefit/Cost ratio which should exceed “one” for further project consideration.

Today’s Court is certain to result in many currently scheduled projects slipping below a “one” ratio due to added real estate costs.

Benefits to Downstream Landowners from this Decision. Prior to Tuesday’s decision, courts did not accept temporary incremental flooding damage as part of a “Takings” claim against the Government. That said, future claims will not be a slam dunk as the Federal Government retains two important defenses:

  1. The Flood Immunity Statute states, “No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place.” (See 33 USC 702(c))

  2. The Federal Tort Claims Act offers additional negligence protection.

A Water Control Plan and approved ad hoc temporary changes could be determined to be within the discretionary authority of the Executive Branch and excluded from any claim for damages from negligent decisions. The Federal Tort Claims Act does not grant relief for, “Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” (See 28 USC 2680(a))

With yesterday’s decision, downstream landowners may receive relief under the “Takings Clause” if they can show sufficient duration of the interference, whether the invasion was foreseeable when the government acted, sufficient severity of the interference, and sufficient degree to which it upsets the property owner’s reasonable expectations regarding the land’s use.

The case is Arkansas Game & Fish Commission v. United States.

Stephen Temmel Senior Advisor

For 30 years, Steve served as District Counsel for the Los Angeles District of the U.S. Army Corps of Engineers. For more about his legal career with the Corps of Engineers, click here.


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