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...