Supreme Court Rules That Temporary Government-Induced Flooding of Private Property Can Qualify as a Taking

Today, the Supreme Court issued a unanimous decision in Arkansas Game and Fish Commission v. United States. The case involved a claim by the Arkansas Game and Fish Commission that the federal government’s repeated deliberate flooding of its property between 1993 and 2000 constituted a taking requiring compensation under the Fifth Amendment, which mandates that the government pay “just compensation” for takings. The flooding caused extensive damage to forest land owned by the Commission.

Today’s opinion by Justice Ruth Bader Ginsburg rules that temporary flooding can qualify as a taking at least sometimes, but tells us very little about how to determine whether a given case of flooding qualifies as a taking or not:

We rule today, simply and only, that government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence… of a compensable taking….

Also relevant to the takings inquiry is the degree to which the invasion is intended or is the foreseeable result of authorized government action…. So, too, are the character of the land at issue and the owner’s “reasonable investment-backed expectations” regarding the land’s use…. Severity of the interference figures in the calculus as well.

So far as it goes, I think the Court’s decision is clearly correct. For reasons I discussed here, there is no good reason to hold that temporary flooding can never count as a taking. This is especially true if the flooding was deliberate and inflicted permanent damage on the property owner’s land. Temporary physical invasions qualify as takings in many other contexts (e.g. – overflights by aircraft), and there is nothing special about flooding that should lead the Court to create a categorical exception. To the contrary, allowing the government to temporarily flood private property without paying any compensation whatsoever would severely undermine the purpose of the Just Compensation Clause, which is, as a 1960 decision puts it, to “bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”

Unfortunately, the Court gives very little guidance on how to determine whether a given case of flooding is a taking or not. The opinion lists several factors that might be relevant, but does not explain how many need to be present before a taking can be said to have occurred, or what to do if some factors cut one way and some the other. It also says nothing about how much deference, if any, is due to the government in such cases. The Court does not even address the federal government’s extremely dubious argument that damage inflicted by flooding on downstream owners is categorically excluded from qualifying as a taking, even though the justices expressed great skepticism about this claim at the oral argument. These and other issues will have to be dealt with by the lower court on remand.

I suspect that the justices bought unity at the expense of clarity here. In the meantime, it seems clear that Arkansas Game and Fish Commission is going to result in further litigation in the lower courts, as property owners and government agencies advance competing interpretations of the Court’s vague standards for determing whether a temporary flood qualifies as a taking or not.

That said, the Court did take an important step in decisively rejecting the federal government’s extreme position that temporary flooding can never be a taking. The case is therefore joins Sackett v. EPA as a rare unanimous victory for property rights in the Supreme Court.

UPDATE: In this post, I explained why the Court is applying the Just Compensation Clause to this case despite the fact that it involves the flooding of government-owned land, while the text of the Fifth Amendment specifies that it applies only to “private property.” Under longstanding current Supreme Court precedent, the Takings Clause applies to both private and state-owned land. I have some doubts about the correctness of those decisions, but the Court is unlikely to overrule them anytime soon.

UPDATE #2: Brian Hodges of the Pacific Legal Foundation comments on this post here:

Professor Ilya Somin…. praised today’s U.S. Supreme Court decision in Arkansas Game & Fish Commission v. United States as “a rare unanimous victory for property rights” and “an important step in rejecting the federal government’s extreme position that temporary flooding can never be a taking….”

Professor Somin highlights, however, a couple a paragraphs toward the end of the decision that injected unnecessary confusion into an otherwise clear opinion….

While I agree that the language is unclear, I am not so sure that the quoted passage will cause too much confusion in future litigation. The passage lists, without differentiation, various tests, developed over the years, to determine regulatory and/or physical takings. For example, the Court recites the “intent or foreseeability” and “character of the invasion” tests from Ridge Line, Inc. v. United States (2003) and Portsmouth Harbor Land & Hotel v. United States (1922)—both are tests that have never been applied to regulatory takings….

Although some may be tempted to argue that the Court created a chimera from blended regulatory and physical takings tests, the Court did not intend to do so. Instead, the Court stated that its decision was narrow, “We rule today, simply and only, that government induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.” And elsewhere, in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002), the Court advised that it is “inappropriate to treat cases involving physical takings as controlling precedents for the evaluation of a claim that there has been a ‘regulatory taking’ and vice versa.” The upshot being that the tests that control physical invasion takings still control physical takings cases, and the tests that control regulatory takings still only apply in regulatory takings cases.

I continue to believe that the opinion is clear in rejecting the government’s extreme claim that temporary flooding can never be a taking, but unclear as to the standards that determine when temporary flooding is a taking. As Hodges notes, the Court lists a grab bag of relevant factors drawn from both regulatory and physical takings cases. So it is by no mean clear which set of precedents applies here. Of course one can argue that the language listing possible relevant factors is just dictum and that the sole holding is, as the Court puts it, “only… that government induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.” But if the list of factors is just dictum, that makes the opinion less clear, not more, as lower courts would have even less guidance on the question of how to figure out whether a given case of temporary flooding qualifies as a taking or not.

UPDATE: Robert H. Thomas of the Inverse Condemnation blog rounds up other reactions to the decision here.

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