September 01, 2012

The Supreme Court tackles temporary takings: Arkansas Game & Fish Commission v. United States

Nancie G. Marzulla

In the October 2012 term, the U.S. Supreme Court will hear argument in Arkansas Game & Fish Commission v. United States, No. 11-579. Petitioner, the Arkansas Game & Fish Commission, challenges a 2–1 decision rendered by the U.S. Court of Appeals for the Federal Circuit denying just compensation for the repeated flooding of state-owned property over a period of six years. Arkansas Game & Fish Comm’n v. United States, 637 F.3d 1366 (Fed. Cir. 2011). At issue is whether the Army Corps practice of periodic releasing of dammed water that causes episodic, temporary flooding of a state-owned wildlife management area is a Fifth Amendment taking.

Prior court decisions on flooding and takings

Over the years, the Court has rendered decisions in a number of significant takings cases involving flooding, including the first inverse condemnation takings case ever decided by the Court. In 1872, the Court held in Pumpelly v. Green Bay Co., 80 U.S. 166 (1872), that the State of Wisconsin must pay just compensation, under the Wisconsin just compensation clause, for the resulting “overflow” of water on privately owned land caused by the construction of a dam. In Pumpelly, the flooding was permanent, “the overflow remained continuously from the completion of the dam” so that there was “an almost complete destruction of the value of the land.”

In the following decades, the Court continued to render takings decisions in flooding cases, and the term “permanent” was repeated in decisions without any further analysis. In United States v. Cress, 243 U.S. 316 (1917), the Court added the notion of “inevitably recurring” to the taking, stating that “[t]here is no difference of kind, but only degree, between a permanent condition of continual overflow by backwater and a permanent liability to intermittent but inevitably recurring overflows . . . .” And thirty-six years later, in United States v. Dickinson, 331 U.S. 745 (1947), the Court found the taking of a flowage easement “taken by the United States to flood permanently land belonging to [plaintiffs]” without any discussion of the role that the term “permanent” played in the analysis.

The Federal Circuit, which has jurisdiction over Fifth Amendment takings cases that present monetary compensation claims against the United States, has continued to quote from these Supreme Court decisions, without stopping to ask if the use of the term “permanent” or “inevitably recurring” are simply artifacts. Indeed, the Federal Circuit has developed an entire body of law built on what could be an artificial construct—that there is a meaningful difference between temporary and permanent takings. So, when the Federal Circuit rendered its decision in this case—stating its rule that these floods were not a taking—it did so without ever explaining how many floods are required before a flowage easement has been taken. And if six years of flooding is not a taking, then why not? The Federal Circuit’s decision offers no guidance in resolving the difference between takings and torts and temporary and permanent takings.

Modern takings cases decided by the Supreme Court suggest that repeated references to “permanent” and “inevitably recurring” in the flooding decisions may not be justified. Specifically, although not in the context of flooding, the Court in First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987), held that a temporary regulatory taking requires payment of just compensation. More recently, in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002), the Court allowed the government some breathing room or “normal delays” in land-use decision making, but nevertheless stood firmly behind the notion of temporary takings.

It is against this backdrop that the Arkansas Game & Fish Commission has asked the Court to decide if the federal government must pay just compensation for flooding of state-owned land resulting from releases of water from the Clearwater Lake and Dam, northwest of Poplar Bluff, Missouri, for six consecutive years. The question is whether the Court will carve out a special exception in takings law applicable only to taking by flooding, or will the Court fold flooding cases into the overall modern takings framework, which encompasses permanent and temporary takings.

Flooding of the Arkansas Game & Fish Commission land

The U.S. Army Corps of Engineers (Corps) built the Clearwater Lake and Dam in Missouri in the 1940s to control flooding on the Black River. Since 1948, the Corps has controlled releases of water from the lake and dam. In 1953, the Corps published its guidelines for releasing stored water in the Clearwater Lake Control Manual (Control Manual).

From 1993 through April 2000, the Corps adopted a series of deviations from the releases outlined in the Control Manual, the purpose of which was to slow down releases to allow farmers more time to harvest their crops. These deviations changed the timing and amounts of water released from the lake. Unfortunately, these changes led to flooding in the Black River Wildlife Management Area, located along the banks of the Black River and down river from Clearwater Lake, in Arkansas.

Six years later and after repeated requests by the Arkansas Game & Fish Commission, the Corps returned to its original plan of operations under the 1953 Control Manual.

In 2005, the Arkansas Game & Fish Commission sued the United States in the U.S. Court of Federal Claims for the uncompensated taking caused by flooding and also timber damage in the wildlife management area. The increased flooding caused the soils in the wildlife management area to become saturated and dominated by wetland plants. Many trees developed root rot and weakened or died. The end result was the loss of eighteen million board feet of hardwood timber and the permanent destruction of waterfowl habitat.

The trial court held that “the inundations during growing seasons from 1993 through 1999 were recurrent and constituted an appropriation, albeit a temporary rather than permanent one because the Corps terminated its deviations.” The temporary flooding easement in turn caused a permanent taking of the timber. The trial court held the federal government liable for a temporary taking of a flowage easement over land and permanent taking of timber, awarding damages of $5.7 million.

The Federal Circuit reverses

Focusing only on the flowage easement, a divided panel reversed the trial court’s decision, holding that the flooding did not rise to the level of a taking because it was not permanent or inevitably recurring. This conclusion was bolstered by the Corps’s description of its changes to the 1953 Lake Control Manual as “deviations.”

The dissent disagreed, pointing out that the temporary flooding must be a temporary taking. The dissent further contended that the damage to the timber is permanent, thus a complete reversal was not warranted.

This debate continued in an opinion denying rehearing and rehearing en banc. A 7–4 majority of the Federal Circuit judges denied rehearing. In a special concurring opinion, three judges agreed that there was no taking because “[t]he United States Army Corps of Engineers (“Corps”) made a series of ad hoc and independent decisions to deviate from the normal release rates at a dam in Missouri, which sometimes caused intermittent flooding on the plaintiff’s property.” Arkansas Game & Fish Comm’n v. United States, 648 F.3d 1377, 1379 (Fed. Cir. 2011) (Dyk, J., with whom Gajarsa & Linn, JJ., join, concurring).

But the dissenting judges focused instead on the physical impacts of the Corps’ actions, not just how the Corps described its actions:

The majority in this case precludes the possibility of a takings claim due to flooding caused by “temporary” government action regardless of the duration or severity of the condition. The majority holds that the only potential remedy is in tort. I disagree. An early Supreme Court decision, United States v. Cress, 243 U.S. 316, 328 . . . (1916), handed down well before the development of the concept of ‘temporary takings’ as it is understood today, talked in terms of requiring that for flooding to constitute a taking, it must be “inevitably recurring.” But that does not preclude the possibility that a government action labeled “temporary” could give rise to such “inevitably recurring” flooding. To allow the government’s “temporary” label for the release rate deviations to control the disposition of this case elevates form over substance and leads to untenable results with enormous future consequences.

Arkansas Game & Fish Comm’n v. United States, 648 F.3d 1377, 1380-81 (Fed. Cir. 2011) (Moore, J., with whom O’Malley and Reyna, JJ., join, dissenting from denial of petition for rehearing en banc).

A possible high court correction?

As the Court stated in Lingel v. Chevron, 544 U.S. 528 (2005),

Twenty-five years ago, the Court posited that a regulation of private property “effects a taking if [it] does not substantially advance [a] legitimate state interes[t].” The lower courts in this case took that statement to its logical conclusion, and in so doing, revealed its imprecision. Today, we correct course.

544 U.S. at 548.

Here, as the Court concluded in Lingel, the time may have come for the Court to correct course by clarifying a Fifth Amendment constitutional principle: that just compensation is due for the taking of temporary flowage easements, just as it is for the temporary taking of other property interests.

Since Pumpelly and the early flooding takings cases, the law of takings has developed dramatically. Temporary takings are now part of established jurisprudence. There is no logical reason to exclude flooding cases from general takings law. It is now well established that if the government occupies land, for instance, even for a temporary time, the government has taken something for which it owes the owner compensation even if the land is not permanently damaged or the government had not intended to take the land.

Too, the Court might be well served by more closely examining its early takings decisions involving flooding. In Dickinson, for instance, the Court found a taking although the plaintiff later reclaimed the flooded land. The Court explained that “no use to which Dickinson could subsequently put the property by his reclamation efforts changed the fact that the land was taken when it was taken and obligation to pay for it then arose.” This reasoning suggests that there is some room for a temporary takings analysis in the taking-by-flooding framework after all.

In short, modern takings law suggests that a physical occupation of land due to flooding is no different in kind, only in terms of duration, from a permanent occupation of land. That is, unless the Court in Arkansas Game & Fish Commission says otherwise.

Nancie G. Marzulla

Nancie G. Marzulla is a partner in the Washington, D.C.-law firm of Marzulla Law, LLC. Her practice is focused on helping landowners obtain just compensation for the taking of their property rights.