In a case of first impression, and a rare case where a party asserting a Takings Claim prevailed, the Supreme Court of the United States recently held that flooding caused by governmental conduct amounts to a temporary taking under the Takings Clause. In Arkansas Game & Fish Comm'n v. United States, 133 S. Ct. 511 (2012), the Arkansas Game and Fish Commission (Commission) brought suit against the United States (US) seeking damages for what it claimed was a taking of land by flooding which resulted in damage to the character and usage of the affected land.
The Commission owns and manages the Dave Donaldson Black River Wildlife Management Area (Area). The Area is made up of approximately 23,000 acres of land along the Black River. The Area is home to several different species of hardwood oak along other plant and animal species. From 1993 to 2000, the U.S. Army Corps of Engineers authorized periodic flooding of the Area which “extended into the peak growing season for timber on forest land.” The repeated flooding “damaged or destroyed more than 18 million board feet of timber and disrupted the ordinary use and enjoyment of the Commission’s property.” The Commission objected to the flooding multiple times on account of the aforementioned damage which was done to the Area. The US finally ceased the flooding practice in 2001.
The Fifth Amendment provides in relevant part: “[N]or shall private property be taken for public use, without just compensation.” This is commonly known as the “Takings Clause.” The Commission brought suit against the US alleging that the aforementioned flooding of the Area constituted a taking for which it was entitled to just compensation. The US defended by arguing that “government-induced flooding can give rise to a taking claim only if the flooding is ‘permanently or inevitably recurring’” which was not true here. This argument would essentially create a categorical exemption from Takings Clause scrutiny for temporary government-induced flooding. The Court of Federal Claims found for the Commission while the Federal Circuit reversed in favor of the US.
Justice Ginsburg wrote the opinion of the Court. The only justice to not join the opinion was Justice Kagan who took no part in the case. The Court observed that there is no “magic formula” in determining when a taking has occurred and that each case must be evaluated in light of its own unique facts. The Court then went on to say that there have been several times where “regularly recurring flooding gave rise to a takings claim.” The Court then recited precedent supporting the proposition that temporary takings can be compensable depending on the circumstances. Following this reasoning, the Court declined to create an exception to the Takings Clause for temporary government-induced flooding. In doing so, the Court reversed the Federal Circuit Court and remanded the case for further proceedings.
The Court further notes that the argument of the US, based largely on the Supreme Court case Sanguinetti v. United States, 264 U.S. 146 (1924), tried to draw a bright-line rule from an opinion that imposed none. The Court allowed that the Sanguinetti case had found no taking on its own set of facts, but Justice Ginsburg pointed out that even if the Sanguinetti Court had meant to impose a rule (which she believed it did not), “that limitation has been superseded by subsequent developments in [Supreme Court] jurisprudence.” Perhaps the most telling comment from the Court was: “We resist reading a single sentence unnecessary to the decision as having done so much work.”
The lack of a dissenting opinion in this case is encouraging in that none of the justices were willing to create a bright-line rule exempting temporary government-induced flooding from Takings Clause
The attorneys of Dalton & Tomich, PLC have the experience and the knowledge to work with you to develop a legal solution that helps accomplish your goals. Our collaborative approach has helped leaders like you grow businesses and banks, develop and expand churches, and build nonprofit organizations nationwide.
In my role as Administrative Bishop for the Church of God, quite often we are faced with issues that involve local governments and municipalities. Many of these issues that arise in dealing with entities are land use related. I have found Dalton & Tomich’s experience and expertise in this area to be a valuable resource and asset in every situation.
Never one time during a year-long litigation process did Dalton & Tomich demonstrate anything other than Christ-like professionalism. They managed the legal details, while we continued to do church. How they managed themselves, managed our case, and represented our church set the table for me and our church to be where we are today.
Dalton & Tomich’s expertise and experience helped us through a very difficult legal journey, ultimately achieving a favorable outcome. Their personal interest in helping us went “above and beyond” just the call of duty.