Supreme Court Action: Temporary Flooding Of Land Is A Taking Under the Fifth Amendment

The Supreme Court issued one opinion this morning.  The case is Arkansas Game And Fish Commission v. United States (11-597).  It concerns an application of the Takings Clause of the Fifth Amendment to state owned and managed property.  The Arkansas Game and Fish Commission owns land that it used to grow timber and as a wildlife and hunting preserve.  The Army Corps of Engineers controls a damn on the Black River which runs through the Commission’s land.  The Corps periodically releases water via the dam that flooded the Commission’s property.  These releases were based on a manual developed by the Corps and included options for temporary deviations from the manual.  The floods sometimes caused minimal damage to the land, and sometimes significant damage that required extensive restoration.

The Commission filed suit claiming that the temporary deviations caused sustained flooding of its land during tree-growing season necessitating costly reclamation measures.  The Court of Federal Claims found for the Commission but was overruled by the Court of Appeals for the Federal Circuit.  The Appellate Court held that the flooding had to be permanent or inevitably recurring to qualify as a taking.  This holding was based on two Supreme Court cases from 1924 (Sanguinetti v. United States, 264 U. S. 146, 150 (1924)), and 1917 (United States v. Cress, 243 U. S. 316, 328 (1917)).

The Supreme Court reversed.  The Court said each case has to be considered within its own circumstances and reviewed its past cases concerning flooding or temporary taking and concluded that there was significant past precedent that supported the view that even temporary flooding constituted a taking.  The Government argued that language in Sanguinetti required that the flooding be a “permanent invasion of the land.”  The Court said subsequent cases undermined the effect of that language.

The heart of the opinion is Part IV:

We rule today, simply and only, that government induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.  When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking.  See Loretto, 458 U. S., at 435, n. 12 (temporary physical invasions should be assessed by case-specific factual inquiry); Tahoe-Sierra, 535 U. S., at 342 (duration of regulatory restriction is a factor for court to consider); National Bd. of YMCA v.  United States, 395 U. S. 85, 93 (1969) (“temporary, unplanned occupation” of building by troops under exigent circumstances is not a taking).

The Court returned the case to the lower courts for more factfinding on issues relating to causation, foreseeability, substantiality, and the amount of damages.  Justice Ginsburg delivered the opinion in which all other members joined.  Justice Kagan did not participate in the case.  [MG]