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January 22, 2013

Supreme Court Rules That Temporary Government-Induced Flooding Can Constitute a Taking of Property

In a decision that could have far reaching implications for government-owned dam and similar water resource management projects, the United States Supreme Court recently declined to establish a "temporary flooding" exception to the Fifth Amendment Takings Clause. The Court's decision in Arkansas Game and Fish Commission v. U.S., Slip Opinion No. 11-597 (2012) reversed a Federal Circuit decision that recognized the existence of such an exception.

The case revolved around the federal government's operation of the Clearwater Dam on the Black River in northeast Arkansas. The Clearwater Dam is located approximately 115 miles upstream of the 23,000 acre Dave Donaldson Black River Wildlife Management Area ("Management Area") owned by the Arkansas Game and Fish Commission ("Commission"). In addition to the Management Area being a wildlife and hunting preserve, the Commission routinely harvests timber in connection with its forest management practices.

Shortly after the construction of the Clearwater Dam in 1948, the United States adopted a Water Control Manual ("Manual") governing water release rates from the dam. Beginning in 1993 and continuing annually through 2000, the United States authorized a planned deviation from the Manual to allow for a slower release of water from September to December in order to provide farmers located downstream with an extended harvest period. However, the delayed release of water necessarily resulted in an increase in the accumulation of water in Clearwater Lake behind the dam. To compensate for the accumulation, the planned deviation allowed greater flows to occur later in the following spring thereby extending the downstream flooding period into the following spring and summer. The Commission frequently objected to the planned deviation and opposed any measures that would make those deviations a permanent part of the Manual.

The Commission sued the United States in 2005 claiming that the temporary deviations from the Manual and resultant flooding were a taking of property for which the Commission as owner of the Management Area was entitled to compensation. The Commission alleged that the deviations "caused sustained flooding of its lands during the tree-growing season" of April to October and that the "cumulative impact of this flooding . . . resulted in the destruction of timber in the Management Area and a substantial change in the character of the terrain, which necessitated costly reclamation measures."

The Federal Court of Claims ultimately agreed with the Commission's position and issued an order to that effect in 2009. The Court of Claims concluded that the United States' deviations "substantially increased flooding, which constituted an appropriation of the Commission's property, albeit a temporary rather than a permanent one." The order noted the cumulative impact of the flooding and its deleterious effect on soils, tree root systems, and the general character of the Management Area. The court calculated the value of the lost timber and the estimated cost of reclamation and awarded the Commission $5.7 million in damages.

On appeal, the Federal Circuit reversed the Court of Claims determining that "government-induced flooding can give rise to a taking claim . . . only if the flooding is permanent or inevitably occurring." The Supreme Court granted certiorari.

In overturning the Federal Circuit's decision, the Supreme Court ruled only that temporary government-induced flooding is not automatically excepted from evaluation under the Takings Clause. The Supreme Court noted that takings claims approved in prior cases were not limited to instances in which the government took physical possession of property. The Supreme Court stated that "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 may be compensable."

In dicta, the Supreme Court further noted that prior decisions of the Court recognized that the determination as to whether a compensable taking exists should be based on the duration of the interference or occupation, the intent or foreseeable result of government action, the character of the impacted land, and the owner's reasonable expectations regarding use of the land.

The ruling sets a precedent for Takings Claims by similarly situated private property owners whose land has been temporarily flooded to the private party's detriment by a government owned or controlled dam project, or a government owned or controlled development project that has the potential to alter topography and impact the flow of ground and/or surface water in a way that could result in a temporary flooding of private property.

If you require further information regarding the information presented in this Legal Alert and its impact on you or your organization, please contact Thomas Walsh, Chair of the Land Use Practice Area, at (585) 295-4414 or or Mark McNamara, Chair of the Real Property Tax & Condemnation Practice Area, at (716) 566-1536 or

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