The 2012 United States Supreme Court decision in Arkansas Game & Fish Commission v. United States (AG&FC) presented the Court with a claim that the property of a landowner downstream of a flood control dam was taken without compensation as a result of non-permanent inundations of low lying portions of that parcel caused by a change in the dam’s pattern of releases. The Court held that that “government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection” and must instead be tested according to the Court’s usual precedents governing temporary physical invasions and regulatory takings. On a remand that was circumscribed in its scope because several key issues were found to have been waived by the United States, the Federal Circuit held a taking had occurred. In doing so the Federal Circuit utilized language that understates the limitations on takings recoveries in such cases. Both the result and the remand opinion will encourage downstream landowners suffering inundation losses traceable to flood control dam operations to bring takings claims.
The AG&FC litigation comes at a time when flood control dam operations are becoming ever more prominent. Recent events throughout the nation attest to more extreme weather, both droughts and intense precipitation events. Dam operators, whose physical facilities were designed with reference to less extreme conditions, must adjust their operations to allow their dams to continue to function to provide optimal protection against massive flood damage. When those adjustments require increased or altered releases in comparison to past norms, those releases inevitably will lead to increases of inundation below the dam, raising the possibility that in some instances the increased inundation may cause significant harm for which the landowner will seek compensation.
This article analyzes the possible bases on which compensation can be granted. Congress, for the present, has eliminated the possibility of tort liability by granting federal flood control dam operators with blanket tort immunity. While the AG&FC decision bespeaks the possibility of Fifth Amendment taking of property liability, this article will argue that under takings standards, takings compensation rarely will be available to adversely affected landowners. Under long and unquestioned precedent, takings liability, rather than tort liability, attaches only when the downstream inundations are a deliberately planned aspect of the dam’s operation in the same way that a storage pool reservoir is part of the dam’s intended pattern of operation.
Even when releases are deliberately planned, very few adversely affected downstream landowners are likely to suffer a harm so disproportionate as to permit them to make a prima facie case of a taking vel non as required by the Court in AG&FC. Three separate lines of analysis make a taking of property unlikely: (1) in few, if any, jurisdictions will the state law definition of riparian rights include the right to be free of all inundations caused by actions of co-riparians, (2) the modern takings test elucidated in the Penn Central case cannot be satisfied, and, (3) the situation will be governed by the nuisance prevention line of cases in which governmental actions that prevent substantial harms to the public are not takings of property. In all of these contexts, the importance of the flood control is a factor in the determination that means most cases of temporary inundation either will not violate the property right or will not be found to be a taking of that right.
Without compensation, a clear possibility exists that some adversely affected landowners will suffer unfairly—they sustain harm that is disproportionate to that of others, and their share in the benefit is no more than similar to that of others. In the face of governmental tort immunity and the slim hope for a takings claim to succeed, this article argues in favor of the voluntary creation of a compensation system. While this can be done by before-the-fact condemnation, Congress has seldom required such action in the absence of planned zones of sacrifice as an element in a congressionally authorized program. Congress also may act after the fact through special legislation, or disaster relief, but those remedies are potentially quixotic rather than systemic. Private flood insurance can be purchased, but tends to be very costly and there is little evidence that it will be purchased, or that subsidized flood insurance is universally purchased. This article instead recommends creation of flood control districts that establish compensation funds financed by a tax on lands benefitted by the presence and operation of the flood control dam which greatly limits the risk of major losses to all such lands. Additionally, the scope of the governmental tort immunity should be reduced by excluding cases of gross negligence from the immunity, thereby striking a better balance between flood control dam operator freedom to respond to changing and exigent circumstances and doing so in wanton disregard of the harms that the actions might cause.
 568 U.S. ___, ___, 133 S.Ct. 511, 522 (2012).
- inundation of land,
- takings of property,
- flood control,
- governmental immunity
Available at: http://works.bepress.com/robert_abrams/2/