In a split decision, a Federal Circuit Court of Appeals panel has ruled that flooding allegedly caused by the U.S. Army Corps of Engineers’ (Corps’) management of the Clearwater Dam in Arkansas did not amount to a taking of property under the Fifth Amendment to the U.S. Constitution. Ark. Game & Fish Comm’n v. United States, No. 09-5121 (Fed. Cir. 3/30/11).

The lawsuit involved the Dave Donaldson Black River Wildlife Management Area, consisting of 23,000 acres on both sides of the Black River. The Arkansas Game and Fish Commission operates the area as a hunting and wildlife preserve. Approximately 115 miles upriver from the preserve is the Clearwater Dam, which the Corps completed in 1948 and has managed since then. Plaintiffs alleged that the Corps deviated from an operating plan for the dam, thus causing increased preserve flooding that damaged the area. They alleged that the flooding amounted to a taking and entitled the commission to compensation. The U.S. Court of Federal Claims agreed and awarded the commission $5.8 million in damages; the Corps appealed.

The appeals court reversed, ruling that the damage caused by the Corps could not be considered a taking because the floodwater releases were temporary deviations. The majority cited Sanguinetti v. United States, 264 U.S. 146 (1924), which held that to be considered a taking, flooding must “constitute an actual, permanent invasion of the land, amounting to an appropriation of and not merely an injury to the property.” The dissenting judge wrote that extended and repeated flooding of property does constitute a taking and that the majority had misconstrued the precedent it cited.