Arkansas Can Fight for $5.7M Flooding Award

     (CN) – The Supreme Court on Monday agreed to review whether the federal government should cover millions of dollars in Arkansas flooding damage.
     The dispute involves the deaths of many oak trees on a 23,000-acre wildlife-management area in Arkansas. The Arkansas Game and Fish Commission attributes these dead trees fatally saturated the root systems caused by increased flooding of the Black River.
     The Army Corps of Engineers acknowledged that it had released more water than planned from the Clearwater Dam between 1993 and 2000, but it claimed that the trees were killed by causes other than flooding.
     After an 11-day trial in 2009, the claims court found the government responsible for an unconstitutional taking of the commission’s property. It ordered the government to pay more than $5.6 million for the dead trees and more than $176,000 for a regeneration program “to address areas severely affected by invasive wetland species.
     But the U.S. Court of Federal Claims reversed last year, disagreeing that the deviations from the 1953 Clearwater Lake Water Control Manual constituted a taking.
     The decision cites Supreme Court precedent distinguishing between a tort and a taking.
     “The parties in this case vigorously dispute whether the extent and frequency of flooding satisfied the substantiality requirement and whether it was predictable,” it states. “However, we need not decide whether the flooding on the Management Area was ‘sufficiently substantial to justify a takings remedy’ or ‘the predictable result of the government’s action’ because the deviations were by their very nature temporary and, therefore, cannot be ‘inevitably recurring’ or constitute the taking of a flowage easement.”
     “Because the deviations from the 1953 plan were only temporary, they cannot constitute a taking,” the decision concludes. “The actions at most created tort liability. … The deviations in question were plainly temporary and the Corps eventually reverted to the permanent plan. Under such circumstances, the releases cannot be characterized as inevitably recurring.”
     With that analysis, the federal appeals court also rejected claims from the commission for more damages to cover regeneration.

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