The Supreme Court recently held that if the government’s actions cause a plaintiff’s private land to be flooded, even if the flooding is not permanent, the plaintiff is not precluded from obtaining compensation for a taking.

The decision involved the government’s decision to annually release more water than usual from a dam on the Black River in Arkansas. These periodic releases benefitted the region’s farmers, but inflicted significant damage on plaintiff’s downstream hardwood forest. Each release flooded the forest. The cumulative effect of this was to destroy 18 million board feet of timber, close the land to recreational use, and cause loss of wildlife habitat. The plaintiff argued that the damage amounted to a compensable taking under the Fifth Amendment of the Constitution. The Court of Federal Claims agreed, and ordered the government to pay the plaintiff $5.7 million. On appeal, however, the United States Court of Appeals for the Federal Circuit reversed the lower court’s decision, holding that compensable taking occurs only when flooding is “permanent or inevitable.”

The Supreme Court unanimously rejected the Federal Circuit’s holding, concluding that there is no basis in the case law for setting flooding apart from other temporary intrusions by the government on property which has been found compensable.

In doing so the Supreme Court rejected the government’s argument that reversing the Federal Circuit’s decision would result in a deluge of takings liability which would impede the government’s ability to act in the public interest. The Court noted that such prophecies have been made time and again in takings cases. It further noted that the public interest asserted here is no different than that at stake in a myriad of other takings cases and the sky did not fall after rulings in favor of the plaintiff in those instances.

That said, the Court did reiterate that the duration of the government’s interference with the property is a factor in determining the existence of a temporary taking (and should be addressed on a case-by-case basis). Moreover, it also made clear that other relevant factors are: the degree to which the invasion was intended or was the foreseeable result of authorized government action, the character of the land at issue and its owner’s “reasonable investment-backed expectations” and the severity of the interference with the property.

Since the Federal Circuit had dealt with none of these issues in the course of the appeal when it was before the court, the Supreme Court remanded the case back to the Circuit for further proceedings.