Takings: Supreme Court Rejects Flooding Exception To Temporary Takings Rule

Tuesday, January 15, 2013 12:00 am
Land Use Law Report, Volume 41, Number 1

The U.S. Supreme Court rejected a Federal Circuit ruling that temporary flooding can never be a taking and instead held that temporary flooding cases--like other takings cases--should be evaluated on a case-by-case basis. The court articulated several factors for such evaluations.

Facts: The Arkansas Game and Fish Commission (Commission) sought compensation for damage to a hardwood oak forest caused by repeated controlled flooding authorized by the U.S. Army Corps of Engineers (Corps). The forest, part of the Dave Donaldson Black River Wildlife Management Area (Wildlife Area), is a wildlife and hunting preserve as well as a timber resource. It is 115 miles downstream from the Clearwater Dam, which the Corps manages. Since the dam was built in 1948, the Corps has released water seasonally according to rates prescribed in its Water Control Manual. These releases cause short-term waves of flooding in the autumn and spring, but the flooding recedes quickly.

In 1993, however, the Corps approved a one-time deviation from that plan at the req[..]


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