Property Rights

Arkansas Game and Fish Commission v. U.S. (2012)


  • February 3 2020

 

Issue

Whether the Federal Government is liable under the Takings Clause of the Fifth Amendment for temporarily flooding property it does not own.  

Facts

The Army Corps of Engineers manages the Clearwater Dam and releases water from the dam at various rates depending on the season, pursuant to their water control plan. From 1993 to 2000, the Corps released water during a period that cut into the timber-growing season and flooded areas controlled by the Arkansas Game and Fish Commission that are used to grow trees for harvesting. These eight years of releases deviated from the normal water control plan. The district court ruled that Arkansas was due compensation and the appellate court reversed that decision, holding that the United States can flood porperty and cause permanent damage, then not compensate the property owner. 

CCJ, in conjunction with the National Federation of Independent Business Small Business Legal Center, National Association of Home Builders, American Farm Bureau Federation, and American Forest Resource Council filed an amicus curiae brief in support of the Arkansas Game & Fish Commission

Summary:

The Arkansas Game & Fish Commission seeks just compensation for damage caused by the United States Army Corps of Engineers’ calculated decision to deviate from longstanding policies that governed water-releases from the Clearwater Dam in southeast Missouri. These deviations resulted in eight years of recurrent flood invasions, which ultimately destroyed numerous trees on the Commission's downstream property.

Government assumes a categorical duty to pay just compensation for any physical invasion of private property, regardless of how long the ensuing occupation persists. Per se liability arises at the time of the initial invasion because the physical occupation of a segment of real property constitutes a burden for which just compensation is owed. Thus, the length of the physical occupation is irrelevant to the question of whether a taking occurred. The length of the occupation matters only with regard to the amount of compensation owed.

Final Outcome

The Supreme Court did ultimately take this case. The 8-0 opinion, written by Justice Ginsburg, held that temporary government-induced flooding is not exempt from Takings Clause review. The case then moved back down to the U.S. Court of Appeals for the Federal Circuit on the Supreme Court’s orders. That court ruled that the government-induced flooding constituted a taking that required compensation under the Takings Clause.