WASHINGTON — The U.S. Supreme Court today rejected the government’s argument against compensating the Arkansas Game and Fish Commission for damages caused by temporary flooding.
In a unanimous opinion, the Justices found “no solid grounding in precedent” for setting flooding apart from other government intrusions on property.
The Supreme Court reversed a U.S. Court of Appeals for the Federal Circuit decision last year that overturned a ruling that would have awarded the Commission $5.7 million for hardwood timber lost over six years of summer flooding at the Dave Donaldson Black River Wildlife Management Area in northeastern Arkansas.
“No decision of this Court authorizes a blanket temporary-flooding exception to our Takings Clause jurisprudence, and we decline to create such an exception in this case,” wrote Justice Ruth Bader Ginsburg.
The decision, however, does not guarantee that the commission will be compensated. The Justices noted that the government raised several challenges that were not considered by the Circuit Court. Those challenges remain open for consideration.
“Obviously we are thrilled with the Supreme Court’s decision,” AGFC Chief Legal Counsel Jim Goodhart said. “It’s been a long road to get to this point and we’ve still got a ways to go, but the 8-0 decision sends a strong message about what our agency has been litigating with the U.S. Army Corps of Engineers over the past seven years.”
Property rights advocates hailed the decision.
The Pacific Legal Foundation, which advocates for private property rights, said the Supreme Court had closed a “dangerous loophole in takings law.”
“Simply put, the Takings Clause does not come with a stopwatch. If government commits a taking, including flooding or occupying someone’s land, there is an obligation to pay, period. That obligation doesn’t depend on how long the government uses the property,” the Foundation wrote on its website.
The National Federation of Independent Business issued a statement supporting the Supreme Court ruling.
“This decision is a victory for small-business owners — farmers and ranchers especially — whose property is essential to their livelihood and the success of their business,” said Karen Harned, executive director of the NFIB Small Business Legal Center. “Temporary government invasions can be costly if left uncompensated.”
During oral arguments in October, Deputy Solicitor General Edwin Kneedler, arguing for the government, said the Army Corps of Engineers should not have to compensate downstream landowners whose property is temporarily flooded.
“It is in the nature of living along a river. Riparian ownership carries with it certain risks and uncertainties, from weather, from intervening causes,” Kneedler said.
James Goodhart, a Little Rock attorney representing the Commission, argued that flooding should not be treated any differently than any other type of government “taking,” and that in this case there was “substantial intrusion” that demands compensation.
“Apply the rule of law here for physical taking and look at it as the Court of Federal Claims did: Was there a direct physical injury? Did it result in substantial intrusion on the commission’s property? If so … there should be just compensation,” Goodhart said.