When Flooding Is Not a Taking
New York Times
5 October 2012
Editorial
The takings clause of the Constitution’s Fifth Amendment ensures
that private property cannot be taken for public use without fair
compensation. A classic example is the government’s exercise of
eminent domain power to build a highway; if the road cuts through
private land, the government owes the owners payment equal to fair
market value. That principle applies when the government builds a
dam, and water and silt overflow land, permanently destroying or
limiting its value. But for 88 years, the position of the Supreme
Court has been that “temporary invasion” of land by flooding is
not a taking because water recedes.
This week the court reconsidered that rule in a case involving a
36-square-mile tract of land maintained by the Arkansas Game and
Fish Commission for wildlife, timber and hunting. The tract is 115
miles down the Black River from Missouri’s Clearwater Dam. The
Army Corps of Engineers caused temporary flooding on that land for
six years in the 1990s with quick releases of water from the dam
in summer. It increased the height of flooding to shorten the
flooding period and give farmers upstream more time to harvest
crops. As a result, thousands of acres of trees were destroyed or
weakened.
The Arkansas commission contends that the corps knew the releases
would cause flooding and damage, which amounted to a taking. It
won a damage judgment of $5.8 million from the United States
government in a special federal court, for lost timber and the
cost of restoring the habitat.
The United States Court of Appeals for the Federal Circuit
reversed that decision, ruling 2 to 1 that the flooding was not a
taking. That is the right result.
The Clearwater Dam was completed in 1948 to provide flood
protection below the dam, including for the Arkansas land that
routinely flooded before the dam’s construction. It is one of
almost 700 dams the Army Corps of Engineers operates, with a range
of purposes that include supplying water and providing recreation
and hydropower in addition to controlling floods.
Between 2000 and 2009, the agency’s flood-control projects saved
an estimated $22.3 billion a year from flood damage. If it and
other agencies that manage natural resources for the government
had to worry about liability for takings for every management
decision, they would lose the flexibility they need. The Supreme
Court’s longtime rule about temporary flooding gives the
government agencies that flexibility. It does not take away the
Arkansas commission’s right to sue the government for a form of
trespass or on other grounds.