In a rather unique twist, a governmental entity–the Arkansas Game and Fish Commission–brought suit against the United States in the Court of Federal Claims, on the ground that six years of periodic flooding during the sensitive growing season by the Army Corps of Engineers destroyed 18 million board feet of timber and left habitat unable to regenerate. Recall that all claims for damages against the United States Government must be brought exclusively in the Court of Federal Claims. In this case the court awarded Arkansas $5.7 million in damages under the theory of a Fifth Amendment physical taking of property without just compensation. However, the United States appealed the decision to the Federal Court of Appeals. In a 2-1 decision, the Court of Appeals reversed the award of damages.
In 1948, the Army Corps of Engineers constructed the Clearwater Dam in southern Missouri. The Black River in Arkansas is located 115 miles downstream, and 23,000 acres along its banks are used as a habitat and wildlife preserve, and also used for timber harvesting. As part of the Army Corps regulations, periodic water release from the dam is required. Between 1993 and 2000, these periodic releases flooded the banks of the Black River causing the harm.
In its decision, the Court of Appeals held that only a permanent physical invasion of property can give rise to a taking under the Fifth Amendment, and that this invasion must amount to a total appropriation of property, not merely an injury.
Fortunately, the United States Supreme Court has agreed to hear the case. It is hoped that the Court will indeed confirm that a temporary physical taking of property is compensable, just as it confirmed in 1987 that a temporary regulatory taking of property is compensable in First English Lutheran Evangelical Church v. City of Glendale.
The case at issue is titled Arkansas Game & Fish Comm’n v. United States. We will keep you posted as the case progresses toward oral arguments later this year.
