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Argument Preview: Federal Flood Liability in Another Dam Case

By Robyn Hagan Cain on October 02, 2012 4:02 PM

The Supreme Court will start its final day of oral arguments this week with Arkansas Game & Fish Commission v. U.S.

Why should you care about this case? Because the Court's holding could allow states and individuals to recover when the federal government accidentally hurts private property.

The Pacific Legal Foundation offers this brief background:

The Arkansas Game & Fish Commission (AGFC) owns and operates 23,000 acres of forest and recreational land located approximately 115 miles downstream from Clearwater Dam in Missouri. Water is released from the dam in quantities governed by a pre-approved "management plan" ... Between 1993 and 2000, the [Army Corps of Engineers] decided to release more water than was authorized under the plan. AGFC repeatedly objected that these excessive releases flooded its forest lands during the critical growing seasons and was damaging large portions of the mature forests. The federal government, realizing the harm it caused, stopped flooding AGFC's land in 2001. By then, however, the forest lands were severely damaged.

AGFC sued the government, claiming that the over-flooding effected a temporary taking, and seeking compensation under the Fifth Amendment. The federal government countered that it was immune from liability for negligence in administering water management policies because the eight years of flooding was really just a series of unfortunate mishaps.

The Court of Federal Claims disagreed, holding that the flooding effected a temporary physical invasion of AGCF's property and awarding the state $5.7 million towards lost timber and reforestation costs. The Federal Circuit Court of Appeals reversed that ruling, concluding that the flooding of private land can never be a taking unless the government intended that the flooding become a permanent or inevitably recurring condition.

The issue before the Court now? Whether government actions that impose recurring flood invasions must continue permanently to take property within the meaning of the Takings Clause.

The Army Corps of Engineers has gained a reputation for its flood management mishaps. (Remember the Hurricane Katrina levy breach?) If the Supreme Court reverses the Federal Circuit in this case, it could open the floodgates (pun intended) to federal flood liability and Corps accountability.

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