Supreme Court Scrutinizes Government Liability in Federally Created Floods

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On Wednesday, the U.S. Supreme Court heard oral arguments on the degree of liability of the federal government and the extent to which it must pay damages for temporarily flooding downstream property owners when it releases water from a dam. The case that involves damage done to an Arkansas wildlife preserve brings focus upon the central question as to when, government activity that affects private property, requires payment to a landowner.

The Fifth Amendment to the U.S. Constitution makes it mandatory for governments to compensate owners of public property that it ‘takes’ for public purposes. Does temporary flooding in this case constitute ‘taking’ by the government? Given that the property owners had no option but to suffer damages to the property caused by government action, that was deliberate, though not malicious, should they receive compensation, and if so, then how much?

The instant case before the Supreme Court involved that of water released by the U.S. Army Corps of Engineers from the Clearwater Dam in Missouri causing the flooding of the Dave Donaldson Black River Wildlife Management Area, which is about 185 km downstream of the dam.

  

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The Arkansas Game & Fish Commission claimed that such releases of water from the Clearwater dam between 1993 and 1998 led to six years of flooding and the death or weakening of almost 18 million board feet of timber, making the task of operating the wildlife reserve extremely difficult.

Initially, a federal court of claims awarded $5.6 million for the lost timber and $176,428 to regenerate a forestry habitat. However, the award was overturned by the U.S. Federal Circuit Court of Appeals, which said flooding was temporary, and did not require compensation as a ‘taking.’

Chief Justice John Roberts commented, “It’s a different case when they go in with the chainsaw than when they go in with the water.”

Justice Elena Kagan recused herself from the 9-judge panel, which, if tied 4-4, would leave the question effectively undecided.