The U.S. Supreme Court has unanimously ruled that temporary but recurring flooding caused by government action could constitute a taking of property that would require compensation. Ark. Game & Fish Comm’n v. United States, No. 11–597 (U.S. 12/4/12) (Kagan, J. not participating).

The issue arose from the U.S. Army Corps of Engineers’ (Corps’s) operation of the Clearwater Dam, built in the 1940s to control flooding on the Black River in Missouri. In 1953, the Corps adopted a management plan setting guidelines for annual releases of dam water and approved a deviation in response to several farmers’ requests in 1993 and subsequent years. Between 1993 and 2000, water releases varied from about 11 feet to 6 feet to reduce water height in downstream areas. This benefited agricultural operations along the Black River, but caused longer flooding that damaged tree crops in a 23,000-acre Arkansas state wildlife preserve, damaging or destroying more than 18-million board feet of timber.

The Arkansas Game & Fish Commission (Game & Fish) owns and manages the wildlife preserve, which is about 115 miles downstream from the dam. Game & Fish sued the United States seeking to recover losses to tree harvests caused by the dam’s operation and, in 2009, the U.S. Court of Claims, awarded Game & Fish more than $5.7 million as compensation for the Corps taking of its property. The United States appealed to the Federal Circuit Court of Appeals, which reversed, holding that because the flooding was only temporary it could not constitute a taking of property.

Before the U.S. Supreme Court, the United States relied in part on a 1924 decision which held that “to create an enforceable liability against the Government, it is, at least, necessary that the overflow be the direct result of the structure, and constitute an actual, permanent invasion of the land.” Sanguinetti v. United States (264 U.S. 146 (1924)). According to the United States, this language demonstrated that flooding must be permanent to constitute a taking.

The U.S. Supreme Court, however, held that Sanguinetti did not dictate that only permanent flooding could constitute a taking. Instead, it held that duration is one issue to consider, along with the degree to which the invasion is intended or foreseeable, the character of the land and the owner’s “reasonable investment-backed expectations.” Because the Federal Circuit based its decision entirely on its incorrect conclusion that temporary flooding could not constitute a taking, the U.S. Supreme Court reversed and remanded for that court to assess other potentially dispositive issues.