If feds flood your land, Supreme Court says, they may owe you

12/04/2012 3:26 PM

02/21/2013 5:50 AM

Private property owners might deserve payment when public agencies temporarily flood their land, the Supreme Court ruled Tuesday in a case closely watched by farmers around the country, and in California in particular.

Pleasing property-rights advocates, the court emphatically declared in an 8-0 decision that even temporary flooding can amount to a “taking” for which the Constitution requires compensation. The ruling in a case that arose from Arkansas will reach everywhere that government actions affect waterways.

“Because government-induced flooding can constitute a taking of property, and because a taking need not be permanent to be compensable . . . government-induced flooding of limited duration may be compensable,” Justice Ruth Bader Ginsburg wrote.

A stalwart of the court’s liberal wing, Ginsburg nonetheless led conservatives as well in rejecting the Obama administration’s insistence that temporary floods should be exempt from the Fifth Amendment’s requirement that private property won’t “be taken for public use, without just compensation.”

The 19-page ruling means that the Arkansas Game and Fish Commission might get paid eventually for the Black River flooding damage that resulted when the Army Corps of Engineers released water from the Clearwater Dam in neighboring Missouri. From 1993 to 2000, the flooding wiped out more than 18 million board feet of timber in a wildlife management area about 115 miles from the dam.

The ruling also empowers more distant property owners such as the Wolfsen Land and Cattle Co., located along the San Joaquin River in California. Wolfsen joined other California farmers in filing a friend-of-the-court brief supporting the Arkansas Game and Fish Commission.

“Hooray,” Wolfsen’s Washington-based attorney Roger Marzulla declared after the court’s decision. “I think it’s directly on point for anyone who owns riparian property, whether it’s along the San Joaquin River or along the river in Arkansas.”

Like their Arkansas counterparts, the California farmers say their land faces inundation because of government actions.

Under a 2009 federal law, state and federal officials are trying to restore water flows and a viable salmon population to the San Joaquin River. Last week, the first salmon were put back in the river. In a lawsuit, Wolfsen and other farming companies seek compensation for the flooding of nearly 13,000 acres in western Fresno and Merced counties. The farmers and the Justice Department are now in confidential settlement talks, Marzulla said.

“It certainly gives us some reassurance,” Marzulla said of the potential impact of the new court ruling.

The Pacific Legal Foundation, a conservative advocacy group based in Sacramento, Calif., that filed its own amicus brief supporting Arkansas, praised the court’s decision as “an important victory for the rights of all property owners.”

The Arkansas dispute arose after farmers persuaded the Army Corps of Engineers to slow the usual water releases from the Clearwater Dam in order to lengthen their fall harvest season. As a result, more water accumulated behind the dam. Longer-term flooding resulted when this accumulated water was let loose the next spring and summer. Roots weakened, trees died and unwanted plant species invaded.

One federal court previously had calculated that the Arkansas Game and Fish Commission was owed $5.7 million for the flooding damage and associated costs. A lower court now will revisit the case, taking into account questions such as the property owners’ expectations and past experiences with flooding

“Today’s modest decision augurs no deluge of takings liability,” Ginsburg predicted.

The decision issued Tuesday was only the second full ruling from the high court since the 2012 term began in October. More politically volatile cases, including a challenge to the University of Texas affirmative action program, might take several months to resolve.

On Friday, the justices will meet again in private to consider gay marriage cases, including a challenge to the federal Defense of Marriage Act and an appeal of a lower court’s decision striking down California’s Proposition 8, which banned same-sex marriages.

The court might announce its decision on whether it will hear the gay marriage cases as early as Friday, or it might wait until Monday.

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