A recent decision by the United States Supreme Court could have significant ramifications on governments this Spring as seasonal flooding is just around the corner. In the case of Arkansas Game and Fish Commission v. United States, 133 S.Ct. 511 (2012), the Court considered whether, and under what circumstances, temporary flooding induced by the government can constitute a taking of property. The Fifth Amendment of the United States Constitution provides that private property shall not be taken for public use, without just compensation. The issue in the Arkansas Game and Fish Commission case was whether or not temporary flooding caused by the United States Army Corps of Engineers constitutes a taking of private property. In particular, the Corps authorized flooding that destroyed 18 million board feet of timber on forest land owned by the Arkansas Game and Fish Commission.
In analyzing this issue, the Court held that “government-induced flooding temporary in duration” can constitute a taking of property for which compensation may be owed to a landowner. The Court’s holding is all the more notable in that it rejected the notion that a takings claim can arise only from flooding that is “permanent or inevitably reoccurring.” The Court explained that when evaluating whether temporary flooding constitutes a taking, courts should analyze: (1) the duration of the flooding; (2) the degree to which the flooding is foreseeable; (3) the landowner’s “reasonable investment-backed expectations” regarding the land’s use; and (4) the severity of the interference.
The Court reiterated that all takings cases “should be assessed with reference to the particular circumstances of each case, and not by resorting to blanket exclusionary rules.” Therefore, while temporary flooding may constitute a taking in one instance, the analysis is extremely fact-specific. For example, during oral argument, the government argued that there could be no taking due to flooding when the landowner’s property is downstream of the relevant body of water and the flooding was “not aimed at any particular landowner” but was only collateral or incidental. Because the government raised this argument for the first time on appeal, the Court refused to express an opinion with respect to it. While this issue remains an open question, the Court stressed that foreseeability was a relevant factor that courts should analyze to determine whether temporary flooding is compensable.
This decision may literally open the flood gates to litigation against the government arising from “government-induced flooding.” For example, landowners along the Missouri River are rumored to be in the midst of preparing a lawsuit against the Army Corps of Engineers as a result of the 2011 Missouri River flood.
Given the fact-specific analysis required when dealing with temporary takings cases, it is unclear at this time whether any bright-line rules will be developed by the courts. However, because the Supreme Court has affirmatively held that there is no categorical exclusion for takings claims resulting from temporary flooding, governments will need to carefully consider the risks and benefits of seasonal and temporary flooding and the attendant takings claims and financial impacts resulting therefrom.