U.S. Top Court: Government May Be Liable for Flood Damage

U.S. Supreme Court Justice Ruth Bader Ginsburg. (AP Photo/Kristen Hines, Pool) U.S. Supreme Court Justice Ruth Bader Ginsburg. (AP Photo/Kristen Hines, Pool)

WASHINGTON (Reuters) - The U.S. Supreme Court ruled on Tuesday that the federal government may be required to pay damages when it releases water from a dam that causes temporary flooding for a property owner downstream.

The case addressed the politically charged issue of when government activity that affects private property constitutes a "taking" that requires payment to a landowner. Under the 5th Amendment to the U.S. Constitution, the government must pay owners of private property that it takes for public purposes.

Writing for a unanimous court, Justice Ruth Bader Ginsburg said temporary flooding of private land by the government is "not categorically exempt" from liability under the 5th Amendment's Takings Clause.

There is "no solid grounding in precedent for setting flooding apart from all other government intrusions on property," Ginsburg wrote.

She also said the decision was not meant to "credit all, or even many" claims over temporary flooding, and that a judge must weigh factors including whether damage was intended, foreseeable, recurring or severe.

The court sided with the Arkansas Game & Fish Commission, which operates the 23,000-acre Dave Donaldson Black River Wildlife Management Area, and had complained about water releases by the U.S. Army Corps of Engineers from the Clearwater Dam in Missouri, about 115 miles upstream.

It claimed that releases between 1993 and 1998 led to six years of flooding, causing the death or weakening of nearly 18 million board feet of timber and making the area harder to manage.

The government argued that the releases had incidental consequences, and that it had the right to balance the "benefits and burdens" of such releases, which could also be used to protect crops or avert flooding in specific areas.

A federal judge awarded $5.7 million for lost timber and to regenerate forestry, but the U.S. Federal Circuit Court of Appeals overturned that award in March 2011, saying the flooding was only temporary and required no compensation.

Tuesday's decision reversed that ruling, and the justices ordered the lower courts to address other government arguments to avoid possible liability.

"We're thrilled," James Goodhart, general counsel for the Arkansas commission, said in a phone interview. "It sends a strong message that this kind of action is compensable under our Constitution, and cannot be treated different from other government intrusions on property. This reopens the door for our agency and state to recoup our losses."

A Justice Department spokesman did not immediately respond to a request for comment.

The commission's appeal was supported by a variety of advocates for fish, forestry and wildlife groups, as well as private property advocates.

Justice Elena Kagan recused herself from the case, likely because she worked on it in her former role as U.S. solicitor general.

The case is Arkansas Game & Fish Commission v. U.S., U.S. Supreme Court, No. 11-597.

Comments

Resource Center

View All »

Complimentary Case Study: Helping achieve your financial goals By:...

Find out how a Special Investigation Union used TLOxp to save the company money and...

Do Your Clients Hold The Right CDL License?

Learn about the various classes of CDL Licenses and the industries that are impacted by...

Integrated Content & Communications: A Key Business Issue For Insurers

Insurers are renewing their focus on top line growth, and many are learning that growth...

High Risk Insurance Coverage in the E&S Market

Experts discuss market conditions, trends and projected growth in a rapidly changing niche.

Top E-Signature Security Requirements

This white paper covers the most important security features to look for when evaluating e-signatures...

EPLI Programs Crafted Just For Your Clients

Bring us your restaurant clients, associations and other groups and we’ll help you win more...

Is It Time To Step Up And Own An Agency?

Download this eBook for insight on how to determine if owning an agency is right...

Claims - The Good The Bad And The Ugly

Fraudulent claims cost the industry and the public thousands of dollars in losses. This article...

Leveraging BI for Improved Claims Performance and Results

If claims organizations do not avail themselves of the latest business intelligence (BI) tools, they...

Top 10 Legal Requirements for E-Signatures in Insurance

Want to make sure you’ve covered all your bases when adopting e-signatures? Learn how to...

Risk Management Report eNewsletter

Identify problems involving emerging risks, reinsurance, and business interruption with help from Risk Management Report - FREE. Sign Up Now!

Advertisement. Closing in 15 seconds.