October Term 2012 gets underway at the U.S. Supreme Court this week, and the Fifth Amendment’s Takings Clause will be front and center in one of the arguments heard by the Court today.  In Arkansas Game & Fish Commission v. United States, No. 11-597, the Justices consider whether government actions that cause recurring flooding on a parcel of land must continue permanently in order to constitute a taking for which the government is obligated to provide just compensation.  The Court’s decision in this case could affect whether a variety of government actions that cause recurring physical invasions of land demand compensation under the U.S. Constitution.

The case concerns a 23,000 acre wildlife management area owned by the State of Arkansas on the banks of the Black River.  The U.S. Army Corps of Engineers maintains the Clearwater Dam 115 miles upstream of the management area and is responsible for regulating the rate at which water is released downstream.  Between 1993 and 2000, the Army Corps caused release rates to deviate from those established for the dam in a water control plan.  These deviations caused increased seasonal flooding in the management area, and the flooding increases damaged the management area’s timber stocks.  Arkansas sued the United States in the Court of Federal Claims, alleging that the flooding increase had taken a flowage easement over the management area.  The Claims Court found a taking had occurred and awarded Arkansas over $5.7 million in damages.  Arkansas Game & Fish Commission v. United States, 87 Fed. Cl. 594 (2009).

A divided panel of the U.S. Court of Appeals for the Federal Circuit disagreed with the takings analysis below and reversed the decision.  Arkansas Game & Fish Commission v. United States, 637 F.3d 1366 (2011).  The majority concluded that a taking occurs only when the cause of a recurring invasion is permanent.  See 637 F.3d at 1377.  Thus, when the government erects a dam that will cause a parcel to flood periodically for the foreseeable future, the government effectively takes a flowage easement.  Similarly, a permanent government policy that causes recurring flooding would also cause a taking.  Id.   The panel found that the deviations in release rates had been made on an ad hoc basis and had not been enacted as official policy.  Consequently, these deviations lacked the permanence required to constitute a taking.  See id. at 1377-79.  The dissent strongly disagreed and read the Supreme Court’s Takings Clause jurisprudence to recognize government-caused flooding to amount to a taking, regardless of the permanence of the government action.

A decision in favor of the Arkansas petitioners in this case could open up an avenue of redress for landowners whose property is impacted by flood control projects and other government activities that cause recurring invasions of land.   The petitioners’ brief stresses that a taking should be established by an analysis of the harm suffered by the landowner rather than the nature of the government action that causes the flooding.  Brief of Petitioner at 21-24.  Furthermore, the issue of when flood damage caused by government water control projects is one that frequently finds its way into federal court.  Less than two weeks ago, the Federal Circuit decided yet another Takings Clause case based on releases from a dam on the San Joaquin River in California.  Skinner v. United States, No. 2011-5113 (Fed. Cir. Sep. 21, 2012).

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