Is The Mississippi River Flooding a Taking?

At first glance, when reading the Arkansas Game and Fish Commission decision, a person could believe that any type of flooding will create a cause of action for inverse condemnation.

Historically, flooding has created a taking of property when flooding is caused by a specific governmental activity changing their relationship between a property owner and the property owner’s proximity to the waterway system. Simply because there will be flooding under a program does not necessarily give rise to a taking in every situation, at least so far. This will be fact based until the Supreme Court provides a bright line test.

The corps has defended its actions repeatedly, but spokesman David Kolarik said Tuesday the agency would not comment on pending litigation.

Murphy said his case would be helped by a U.S. Supreme Court ruling in December that the federal government is not automatically exempt from paying for damage caused by temporary flooding from its dams.

The court sided with the Arkansas Game and Fish Commission in its appeal of a lower court ruling that said the federal government did not have to pay for damage to thousands of trees after the corps released more water than usual from its dam on the Black River. The release of additional water benefited farmers, but the commission said its hardwood forest suffered significant damage.

The commission said the damage amounted to the government taking its property, for which compensation would be owed under the Constitution.

The Court of Federal Claims agreed and ordered the government to pay $5.6 million for destroyed and damaged trees. But the U.S Court of Appeals for the Federal Circuit in Washington said damage resulting from temporary flooding, as opposed to permanent or inevitable flooding, cannot be compensated under the Constitution's Takings Clause

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