The U.S. Army Corps of Engineers periodically released water from the Clearwater Dam in Missouri at the request of farmers. The release caused temporary flooding of nearby timberland during the peak growing season, destroying valuable timber owned by the Arkansas Game and Fish Commission. The Commission sued the United States, alleging that the property damage was an unconstitutional taking that entitled the Commission to compensation. On December 4, 2012, the U.S. Supreme Court issued a unanimous ruling agreeing with the Commission in Arkansas Game & Fish Commission v. United States.
The issue boiled down to whether government-induced temporary flooding entitles a property owner to compensation, or whether the flooding must be “permanent or inevitably recurring” before compensation is due. In the end, the Supreme Court found no solid ground for treating temporary flooding apart from other government intrusions of property. Whether there is a compensable taking will turn on situation-specific factual inquiries, so the Court was reluctant to draw any additional bright lines to define a takings. Nor was it willing to authorize a blanket temporary-flooding exception to the Takings Clause, a victory for property owners.
The Supreme Court did not necessarily plow any new ground in this case, as recognized by Justice Ginsburg, who wrote the opinion: “Today’s modest decision augurs no deluge of takings liability.” Whether a regulation or temporary physical invasion by government interferes with private property and is compensable will still depend on the duration of the interference, the degree to which the invasion is intended or foreseeable, the character of the land, and the owner’s “reasonable investment-backed expectations” regarding the land’s use. The Court sent the case back to the lower court to weigh these factors and determine compensation, if any.