Posted in: Constitutional Law

When the October oral argument session at the Supreme Court begins, in a few weeks, most of the attention will be focused on Fisher v. University of Texas, an affirmative action dispute about which I have written a number of columns for this site (accessible in my archive).  And such attention is justified, insofar as Fisher could end up being the defining decision of the 2012-2013 Term.  But there are other constitutional cases worth discussing that are also slated for the October argument session.  In the space below, I preview one of them, Arkansas Game & Fish Commission v. United States, involving the clause of the Fifth Amendment that forbids the federal government from taking “private property . . . for public use, without just compensation.”

The so-called Takings Clause, while perhaps less flashy than the Equal Protection Clause at issue in the affirmative action case, has been the subject of regular attention by the Supreme Court, including in the last decade.

Sometimes, as in the high-profile Kelo v. New London case from 2005, the issue has been what constitutes “public” use.  (There, the Court reaffirmed that government can, if it chooses to, use eminent domain to take property from one private owner in order to lease that property to other private entities, provided that the transfer will likely generate public benefits in the form of, e.g., jobs and/or increased tax revenues.)

In other cases, such as Brown v. Legal Foundation of Washington from 2003, the question presented involved an inquiry into what level of compensation is “just” (and thus constitutionally required) in a given circumstance.  (In that case, the Court held that because the persons whose property was used by the government to generate bank account interest could not have generated any interest on their own, the level of required compensation was zero, even though the government was benefitting by use of the property.)

In Arkansas Game & Fish, a case involving federal management of a dam from which intermittent releases of water have caused downstream flooding, the question is in some ways more foundational: What constitutes a taking in the first place?

The Factual Background of the Dispute

Under direction from Congress, the U.S. Army Corps of Engineers and the federal Bureau of Reclamation construct and operate various water-management systems and projects (including levees, dams, and the like) throughout the United States, in order to, among other things, reduce overall risk of flood damage, provide irrigation to fertile but otherwise dry farmlands, generate hydropower, increase water supplies for residential populations, and provide areas for recreation.  One such project is the Clearwater Dam, which was constructed by the Corps in the 1940s, largely to help control flooding of the Black River that flows south from Missouri into Arkansas.  The Dam also created a lake (Clearwater Lake) behind the Dam; the Lake is used for recreation, fish and wildlife.  The Corps releases waters from the Lake behind the Dam into the River pursuant to a policy manual (“The Manual”) adopted by the Corps in the 1950s.  The Manual provides for regular releases of water, and also contemplates that the Corps will deviate from normal release patterns when specific good reasons to do so (including, but not limited to, emergencies) arise.  During the 1990s, the Corps approved a number of such deviations on a one-time basis, and on that approval released, on a number of occasions, additional waters from the Lake into the River.

The legal dispute comes about because the Arkansas Game & Fish (“G & F”) agency owns a large tract of land located about 115 miles downriver from the dam that is used for, among other things, timber, other agriculture and duck hunting.  This land floods occasionally for a number of reasons, one of which is the water that comes from the Dam.  It typically takes six days or more for water released from the Dam to reach the tract, but it does ultimately arrive there.  G & F (and its experts) argued that the additional, irregular releases of water from the Dam by the Corps in the 1990s increased the number of days that flooding occurred (adding a few additional flood days per month) on the G & F lands, causing the trees there to become weakened and more susceptible to death in a subsequent drought.  G & F thus sued the federal government, arguing that the federal imposition of water flowing onto its lands amounted to a taking for which just compensation (for the damage to the timber) was required.  The federal government’s essential response has been that no constitutional taking has occurred because the additional flooding of G & F’s land that was caused by irregular water releases from the Dam was temporary, rather than permanent.

The Legal Issue At Stake and the Competing Arguments

The case presents a seemingly narrow, but potentially quite important, issue:  does temporary incremental flooding of the kind caused by the federal government in this setting onto other lands (which are subject to some flooding in any event) amount to a taking for which compensation is required?

Before plunging into that question, let us note that it is somewhat unusual for a State (in this case, Arkansas) to be asserting rights under one of the Bill of Rights provisions against the Federal Government.  For instance, it is not clear that state entities enjoy “free speech rights” against the federal government under the First Amendment, or Fourth Amendment rights to be free from unreasonable federal searches undertaken pursuant to a general federal search policy.  And it bears noting that the Fifth Amendment’s Takings Clause explicitly refers to the taking of “private” property.  Nonetheless, because state and local governments do own real and other property under state property law, and because federal regulations can have the effect of depriving public entities as well as private persons of the use and enjoyment of property, the Court has long entertained takings claims by state and local entities against the federal government.  But it is worth observing that in any such instance, a dispute that, if involving private property ownership, would seem to be about individual rights against government abuse, instead becomes a federalism case about allocation of authority and resources between the federal and state governments.

When we focus on the merits of the case closely, we can see that the federal government’s argument that the burden placed on G & F’s land by the challenged water releases is “temporary” really uses the term “temporary” in two senses:  In the first sense, the flooding occasioned by each water release was temporary in that it lasted only for a limited period of time; the land was not permanently or indefinitely submerged, but rather was flooded only for as long as it took for the water to recede and/or be absorbed.  In the second sense, the releases being challenged were temporary in that they were not done periodically and consistently and pursuant to a recurring regular pattern; instead, they were done essentially ad hoc when particular, presumably well-grounded, requests for release or emergency reasons for release were presented.  Drawing on a number of old Supreme Court decisions, the United States argues that the only time a taking can be recognized in the context of a federally caused flood is when the land was “continuously inundated or [at the very least subject to] intermittent but inevitably recurring overflows.”  Neither continuous inundation nor inevitable recurring overflows are present here.

G & F counters these arguments by pointing to cases in which the Court has recognized takings to have occurred even when the interference with property rights was occurring for a finite duration.  For example, in one case from 1946, the Court found that low-altitude government flights over a chicken farmer’s property effected a taking for which compensation was required, even though the flight pattern was not being maintained indefinitely.  In a similar vein, the Court recognized that takings occurred when the federal government physically occupied a claimant’s property during World War II for a fixed period of time, even though the occupation was not “permanent,” i.e., ongoing.

The United States replies that these cases involve direct occupation by government instrumentalities, not the indirect flow of waters from a dam that may be located far away from a claimant’s parcel.  Flooding cases, the United States argues, should constitute a category unto themselves, and should not be analogized to other kinds of invasions.  This is particularly true, says the United States, because Congress, in setting up so many federal water projects, relied on the old flood-takings cases which seem to require permanent flooding before a taking is recognized; to expose the federal government to significant liability now, in the context of temporary flooding, would be unfair to Congress.

There is much to what the federal government argues, but a Court that is often sympathetic to state claims of usurpation and coercion by the federal government (as in the Obamacare rulings), and that is interested in reinvigorating economic constitutional rights more generally, may have a difficult time resisting some of the analogies offered by G & F.  It will be interesting to see what new law is made here on the question of what amounts to a taking, and whether the case’s impact will seep beyond the realm of dams and floods.

Posted in: Constitutional Law