December 22, 2017 Article

Is There a Compensable Taking When a Dam Release Causes Billions of Dollars in Damages?

Homeowners allege that the government, in causing flooding to homes post-hurricane Harvey from the Addicks and Barker dams, took their property under the Fifth Amendment

by Justin A. Hodge and Ashley M. Croswell

There exists a perception that takings liability for government-induced flooding is in a somewhat inconsistent state; cases with similar facts often yield conflicting results. But upon a closer analysis, courts have determined the existence vel non of compensable takings in a remarkably consistent way. Although many practitioners focus on the temporary nature of the flood and damage to determine liability, the way to analyze takings caused by floods, in a manner more consistent with the case law, is to examine causation and the foreseeability of the flooding. The Supreme Court declared in 2012 that flooding caused by the government, temporary in duration, is not categorically exempt from Takings Clause inspection. Arkansas Game & Fish Comm’n v. United States, 568 U.S. 23, 40 (2012). Said another way, government-induced flooding, even if temporary in nature, can rise to the level of a taking under the Fifth Amendment depending on the circumstances.    

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