U.S. Supreme Court

Supreme Court to Decide Whether Temporary Flooding of Land by US Is a Taking


The U.S. Supreme Court on Monday granted cert in a case that contends temporary flooding by the U.S. Army Corps of Engineers is a taking requiring compensation to the landowner.

The claimant, the Arkansas Game & Fish Commission, says thousands of oak tries died when the government flooded its wildlife area for six consecutive years during the growing season, according to the cert petition (PDF) and Courthouse News Service. The Court of Federal Claims awarded $5.7 million in damages, but the U.S. Court of Appeals for the Federal Circuit reversed.

The appeals court ruled the temporary flooding did not constitute a taking within the meaning of the takings clause. At most, the flooding created tort liability, the court found.

The cert petition says the case presents “a compelling opportunity” to clarify takings law. “Certainly, not every government invasion of property constitutes a taking,” the document says. “But the core Fifth Amendment standards do not suffer the government a free license to temporarily invade private property.”

The Volokh Conspiracy and the PLF Liberty Blog have more information on the case, Arkansas Game & Fish Commission v. United States.

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