Arkansas Fish & Game v. United States

Date: December 21, 2012

In 1948 the Army Corp. of Engineers completed construction on a dam in southeastern Missouri, 115 miles upstream from Plaintiff’s property. At that time Army Corp. completed a series of tests to determine how much water should be released through various times of the year. Army Corp. created a plan in 1953 for the continued operation of the dam setting forth its policies on how much water should be released and when. But in the mid-1990s Army Corp. began to experiment by releasing more water than had previously been allowed under the 1953 plan. For several years Army Corp. released greater volumes of water until ultimately deciding to go back to the water release policies that it had originally adopted in 1953. The decision to revert back to the 1953 policy was triggered by an environmental impact report which showed that higher water releases caused continued flooding downstream, which resulted in environmental harm to trees.

In 2005 the Arkansas Game & Fish Commission filed suit in the Federal Court of Claims alleging that the United States had taken its property though continual flooding during the 1990s. As a result many trees on Commission’s property had been damaged and the Commission sought compensation for the loss of those trees and the costs of restoring the property to its natural state. The United States argued that it could not be liable for a temporary taking under existing case law; however, the District Court disagreed, finding that Army Corp. had taken Petitioner’s land by frequent and consistent flooding over several years, notwithstanding the fact that Army Corp. has now taken steps to avoid future flooding. The Federal Circuit Court reversed over a strong dissent.

We originally filed an amicus brief in the Supreme Court in this case on the question of whether there is a categorical bar prohibiting litigants from advancing takings claims against the federal government when a physical invasion is only temporary. In a victory for property rights, the Supreme Court made clear that there was no such rule prohibiting temporary takings claims in flooding cases.

Now the case has been remanded back to the federal circuit. We filed again to argue that the Supreme Court decision should be understood narrowly. Our brief specifically aimed to defuse the federal government’s argument that the Supreme Court decision made it harder for the plaintiffs to prevail. We contend that the government must compensate landowners for flood induced damages when government causes the flooding.

For more information, commentary and insight view our July 5, 2012 press release, or the NFIB Blog.

Status: DECIDED. Amicus brief filed on 4/1/13. Court ruled in favor of the property owner on 12/04/13.

blog comments powered by Disqus

Subscribe For Free News And Tips

Enter your email to get FREE small business insights. Learn more

Get to know NFIB

NFIB is America's leading small business association, promoting and protecting the right of our members to own, operate and grow their business

Find out more about
NFIB Membership

Or call us today