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Thursday, July 18, 2024 | Back issues
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Uncle Sam May Be Liable for Recurrent Flooding

WASHINGTON (CN) - Arkansas can seek reimbursement for years of government-authorized flooding that caused millions in forest damage, the Supreme Court ruled Tuesday.

The Arkansas Game and Fish Commission had sued the U.S. government in 2005 to get compensation over the deaths of many hardwood oak trees on a 23,000-acre wildlife-management area along the Black River in Arkansas.

Though the Army Corps of Engineers acknowledged that it had released more water than planned from the Clearwater Dam between 1993 and 2000, it claimed that there could be other explanations for the tree deaths.

After an 11-day trial in 2009, the U.S. Court of Federal Claims 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 Federal Circuit reversed in 2011, disagreeing that the deviations from the 1953 Clearwater Lake Water Control Manual constituted a taking.

If found that compensation may be sought only when flooding is "a permanent or inevitably recurring condition, rather than an inherently temporary situation."

Reversing again on Tuesday, the Supreme Court said that "recurrent floodings, even if of finite duration, are not categorically ex­empt from Takings Clause liability."

"Our decisions confirm that takings tem­porary in duration can be compensable," Justice Ruth Bader Ginsburg wrote for the unanimous court. "This principle was solidly established in the World War II era, when '[c]ondemnation for indefinite periods of occupancy [took hold as] a practical response to the uncertainties of the government's needs in wartime.' In support of the war effort, the government took temporary possession of many properties. These exercises of gov­ernment authority, the court recognized, qualified as compensable temporary takings."

The court upheld a temporary takings claim in the 1946 case United States v. Causby, when it sided with a chicken farmer whose suffered disturbances from frequent overhead flights at a nearby airport.

"Because government-induced flooding can constitute a taking of property, and because a taking need not be permanent to be compensable, our precedent indicates that government-induced flooding of limited duration maybe compensable," Ginsburg wrote. "No decision of this court authorizes a blanket temporary-flooding exception to our takings clause jurisprudence, and we decline to create such an exception in this case."

There is no reason to differentiate between flooding and other government property intrusions, the ruling states.

"And the government has presented no other persuasive reason to do so," Ginsburg added. "Its primary argument is of the in for a penny, in for a pound genre: reversing the decision below, the government worries, risks disruption of pub­lic works dedicated to flood control."

The justices showed little patience for the "slippery slope argument" here.

"Time and again in takings clause cases, the court has heard the prophecy that rec­ognizing a just compensation claim would unduly impede the government's ability to act in the public interest," the decision states. "We have rejected this argument when deployed to urge blanket exemptions from the Fifth Amendment's instruction. While we recognize the importance of the public interests the government advances in this case, we do not see them as categorically different from the interests at stake in myriad other Takings Clause cases. The sky did not fall after Causby, and today's modest decision augurs no del­uge of takings liability."

Justice Elena Kagan took no part in the consideration or decision of the case.

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