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Wednesday, December 5, 2012

Supreme Court Rejects Blanket Temporary Flooding Exception to Takings Clause

We previously reported on an appeal to the U.S. Supreme Court involving a claim that flooding caused by the federal government resulted in a Fifth Amendment "taking" requiring payment of just compensation. Yesterday, the Supreme Court issued its opinion in Arkansas Game and Fish Comm'n v. United States, No. 11-597 (Dec. 4, 2012), reversing the Federal Circuit’s previous ruling that there was no taking because the flooding was not "permanent or inevitably recurring."
The plaintiff had argued that actions taken by the Army Corps of Engineers in releasing water from a dam caused sustained flooding during tree-growing season, and that the cumulative impact of the flooding caused the destruction of timber and a substantial change in the character of the terrain, necessitating costly reclamation measures. The federal government had defended its actions by arguing that there is an exception to the takings clause for temporary flooding actions by the government, which argument was accepted by the Federal Circuit Court.

The Supreme Court rejected any blanket temporary-flooding exception to the Fifth Amendment takings clause, stating that "[w]hile we recognize the importance of the public interests the Government advances in this case, we do not see them as categorically different from the interests at stake in myriad other Takings Clause cases." The Court did not rule on the actual takings claim presented by the plaintiff, however, instead remanding the case to the lower court to apply the Court’s takings analysis to the specific facts of the case.
Post Authored by Julie Tappendorf, Ancel Glink.


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