October 5, 2012
Court Hears Arguments on Flooding as Taking
Oral argument this week in Arkansas Game & Fish Commission v. United States revealed little certainty in the test—much less the result—in a Takings Clause claim when the government releases water from an upstream dam, temporarily flooding and damaging downstream property. Even after a barrage of probing questions and hypotheticals, the parties struggled to convey a clear test that would yield determinate results beyond this case. Still, it seemed that they both might agree that a strict formalistic test—judging a “permanent” flood a taking, but a “temporary” flood a non-taking—may not be the best choice. But as to any new test, and how it might apply in new cases, it seems, the best either party could say is: It depends.
The case arose out of a series of planned releases of water from the Clearwater Dam by the Army Corps of Engineers. These releases were deviations from the Corps’ operating plan for the Dam and were approved by a working group comprised of interested individuals and groups. The Arkansas Commission claimed that the releases caused annual temporary flooding on its property, the Dave Donaldson Black River Wildlife Management Area, 110 miles downstream from the Dam, which permanently damaged unique hardwood trees and the wildlife they support. The lower court, the United States Court of Appeals for the Federal Circuit, ruled that the releases and the resulting floods did not amount to a taking, because they only produced temporary flooding, not permanent flooding.
It may not be a big surprise that the parties and justices struggled with a clear test, given the challenges in figuring out whether the government’s temporary release of water at a remote dam and the resulting flooding on downstream property effected the kind of taking that the Takings Clause is designed to address—especially when the releases were designed to protect other public interests at and around the Dam. The problem is that a temporary flood looks a little like a nonintrusive trespass—maybe like, as Justice Breyer asked, a Department of Interior employee trampling paths on private land (on the one hand)—and a little like a physical invasion by the government that causes permanent damage (on the other). If the former, it looks less like a taking (and more like a trespass); if the latter, it looks more like a taking. Another problem: the releases 115 miles upstream from the Management Area may not have been the direct cause of its flooding, that is, there may have been other, contributing causes. And we don’t know what’s the relevant baseline for comparison: The water level in the Management Area before the Dam was constructed? The water level after the Dam was constructed, under the normal water release plan? The water level based on the deviations? Or some other baseline? Finally, temporary flooding doesn’t necessarily result in long-term damage or deprivation or property (because the water might simply recede); permanent flooding does. All these problems were on full display at the argument this week.
The lower court navigated these issues in a categorical way, saying that permanent floods are takings while temporary floods are not—an easy answer, even if perhaps overly formalist, and one that the Federal Circuit said was rooted in precedent. In this case, said the lower court, the floods were temporary—no taking.
Arkansas disagreed. It argued that the test for determining whether a government flood is a taking should look to whether the government action is direct, predictable, and substantial—a totality-of-the-circumstances approach that looks to the facts. Arkansas said that the totality pointed to a taking here, but might not in other similar situations.
The government argued that the flooding and any resulting damages were too loosely related to the Corps’ releases. After all, the releases occurred 115 miles upstream—enough distance to allow any number of contributing and intervening acts to break the causal chain. In any event, according to the government, any flooding on the Management Area was just an incidental result of the Corps’ operation of the Dam. In other words, the Corps didn’t target the releases to flood the Management Area; instead, it designed the releases to serve other public interests, with the incidental effect of flooding.
On balance, the parties and the Court seemed to move beyond the lower court’s formalistic approach into a new, more holistic test based on the circumstances. But neither party could produce a coherent, workable test that could apply to this case and beyond.
One possibility is that the Court could craft a test based on the directness of the government action, the predictability of the action, or the substantial nature of the action, or some combination of those and even other factors, and remand for application. Another possibility: the Court could write its test and apply it. In any event, there weren’t enough strong signals from the justices to predict a result, but, on balance, the Court seemed to lean toward a taking.
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