Supreme Court Docket Report - April 2, 2012

Originally published April 2, 2012

Keywords: private property, public use, compensation, Fifth Amendment's Takings Clause

Today, the Supreme Court granted certiorari in one case of interest to the business community:

Takings Clause—Flooding

The Fifth Amendment to the U.S. Constitution provides that private property shall not be taken for public use without just compensation. Today, in Arkansas Game & Fish Commission v. United States, No. 11-597, the Supreme Court granted certiorari to decide whether government actions that cause flooding, but are temporary in nature, can constitute a taking of property within the meaning of the Fifth Amendment's Takings Clause.

Petitioner, the plaintiff below, owns the 23,000-acre Dave Donaldson Black River Wildlife Management Area along the Black River in Arkansas. The Clearwater Dam is located 115 miles upstream, in southeast Missouri. Petitioner filed a lawsuit alleging that, between 1993 and 2000, the Army Corps of Engineers improperly deviated from a 1953 operating plan for the dam and caused increased flooding in its wildlife management area, which damaged trees. The Court of Federal Claims concluded that the United States had taken a temporary flowage easement over petitioner's property and awarded nearly $6 million in damages.

A divided panel of the Federal Circuit reversed, holding that the damage was a tort (for which the United States is generally immune), not a taking. The Federal Circuit acknowledged that the Supreme Court had recognized temporary takings claims in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987). But the court of appeals instead followed a pair of Supreme Court cases from the early 1900s, United States v. Cress, 243 U.S. 316 (1917), and Sanguinetti v. United States, 264 U.S. 146 (1924), which held that, to constitute a taking, flooding must present "an actual, permanent invasion of the land," amounting to "an appropriation of and not merely an injury to the property." Under these decisions, the Federal Circuit reasoned, an injury is a tort, not a taking, if it is a consequence of temporary flood-control policies. Four judges dissented from the denial of rehearing en banc.

The Supreme Court's decision in this case will be important to property owners affected by flood-control policies of the Army Corps of Engineers and other government agencies. Depending on the analysis employed by the Court, the decision may also affect a...