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SENTRY JOURNAL » Uncategorized » Supreme Court rules that government induced flooding may be compensable

Supreme Court rules that government induced flooding may be compensable

This past Tuesday the Supreme Court of the United States ruled on the case ARKANSAS GAME AND FISH COMMISSION v. UNITED STATES  The commission sued the United States, alleging that temporary deviations from the Water Control Manual made by the Army Corps of Engineers constituted a taking of property and that the commission was entitled to compensation.  The commission maintained that these deviations caused sustained flooding during tree-growing season and led to the destruction of timber and a substantial change in the character of the land, creating costly reclamation measures.

The following is an excerpt from the case.

The Commission sought compensation from the United States pursuant to the Fifth Amendment’s instruction: “[N]orshall private property be taken for public use, without just compensation.” The question presented is whether a taking may occur, within the meaning of the Takings Clause, when government-induced flood invasions, al-though repetitive, are temporary.

In 1993, the Corps approved a planned deviation in response to requests from farmers. From September to December 1993, the Corps released water from the Dam at a slower rate than usual, providing downstream farmers with a longer harvest time. As a result, more water than usual accumulated in Clearwater Lake behind the Dam. To reduce the accumulation, the Corps extended the period in which a high amount of water would be released.

So basically by deviating from their rule book the Army Corps of Engineers created an environment where water levels greatly increased in Clearwater Lake forcing them to release higher amounts of water that caused flooding.  Sound familiar.  They basically mishandled the management of water, much like they did during the Minot flood of 2011.

The court concluded that the Corps’ deviations caused six consecutive years of substantially increased flooding, which constituted an appropriation of the Commission’s property, albeit a temporary rather than a permanent one. Important to this conclusion, the court emphasized the deviations’ cumulative effect. The trees were subject to prolonged periods of flooding year after year, which reduced the oxygen level in the soil and considerably weakened the trees’ root systems. The repeated annual flood­ing for six years altered the character of the property to a much greater extent than would have been shown if the harm caused by one year of flooding were simply multi­plied by six.

Additionally they concluded the following.

Because government-induced flooding can constitute a taking of property, and because a taking need not be permanent to be compensable, our precedent indicates that government-induced flooding of limited duration maybe compensable. 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.

The Minot flood was government induced because the Army Corps of Engineer controlled the release of water during the 2011 flood and therefore by the Supreme Court’s definition constitutes a taking of property on a temporary basis and may be an act that is compensable.

Lastly the court ruled,

We rule today, simply and only, that government ­induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking.

You can read the entire ruling here.

If I was a Minot property owner who was impacted by this government induced flood, I just might be picking up the phone to call a lawyer to see where I stand.  It sounds like you might have standing after this ruling on Tuesday.

Liberty forever, freedom for all!

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