Flood Subrogation Under The Fifth Amendment

The Fifth Amendment to the U.S. Constitution requires the federal government to pay just compensation when it takes private property. While a taking implies a permanent interruption of property rights by the government, courts have broadened the definition of a taking to include repetitive but temporary intrusions.

Compensable takings are usually accomplished by means of a condemnation action (the government's power of eminent domain), government regulations (regulatory taking) that affect the value or marketability of a property or as a result of some government action (constructive taking) that has the effect of taking the property. The latter taking cases are sometimes called "inverse condemnation" claims because, unlike the eminent domain cases in which the government is the plaintiff, inverse condemnation cases cast the property owner as plaintiff (hence the action is "inverted") seeking just compensation for land that has been allegedly taken.

Flood taking cases can be regulatory or constructive taking. While there are some permanent flood cases such as when a dam is built and upstream land becomes a reservoir, most floods are temporary; the land floods then the waters recede and the damaged property (real and personal) is restored to the owner. Under these circumstances, the insult to the property is temporary but the courts have held that in some circumstances these temporary intrusions can be takings under the Fifth Amendment.

Against this backdrop, the recent U.S. Supreme Court decision in the Arkansas Game and Fish Commission v. United States, 133 S. Ct.511 is a reaffirmation of accepted Supreme Court precedent regarding flood taking jurisprudence. The court held that 1) temporary but persistent flood claims can be compensable takings under the Fifth amendment and that 2) most taking claims "turn on situation-specific factual inquiries" so there are few bright lines . The court conclusively and emphatically rejected the Circuit Court's categorical finding that temporary flood claims can never be takings under the Constitution.

In Arkansas Game the government cited Sanguinetti v. United States, 264 U.S. 146 and United States v. Cress, 243 U.S. 316 in support of its position. The Supreme Court distinguished the Sanguinetti permanent reference as dicta, not necessary for the holding and simply a summary of preceding case law. The Court also said that even if the Sanguinetti court meant that flooding must be permanent, such a...