Supreme Court Holds Temporary Flooding Can Be A Taking

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After passing on a number of Fifth Amendment issues in recent history, the U.S. Supreme Court is scheduled to hear three cases this term in which the takings clause plays a prominent role. And today, the Court addressed the first of these three cases, holding that a temporary-flooding can result in a taking requiring just compensation under the Fifth Amendment.

In Arkansas Game and Fish Commission v. United States, the Arkansas Game and Fish Commission argued that a temporary but reoccurring flooding of its property resulted in a taking requiring just compensation. The property, which was operated as a wildlife and hunting preserve, as well as a timber resource, was located in a floodplain approximately 115 miles downstream of the Clearwater Dam. Shortly after the construction of the Dam in 1948, the Army Corps of Engineers adopted a schedule of release rates. From 1993 to 2000, however, in response to annual requests from farmers, the Army Corps temporarily deviated from the schedule. As a result of these temporary deviations, the property experienced on average an additional 26 days of flooding per year. The Commission asserted that the temporary floodings eventually resulted in the destruction of more than 18 million board feed of timber, and led to the invasion of undesirable plants requiring the Commission to undertake significant reclamation efforts.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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