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Supreme Court Says Government May Be Liable for Flood Damage

The U.S. Supreme Court has ruled that the federal government may be required to pay damages when it releases water from a dam that will cause temporary flooding for a property owner downstream...
December 12, 2012

The U.S. Supreme Court has ruled that the federal government may be required to pay damages when it releases water from a dam that will cause temporary flooding for a property owner downstream. The case addressed the politically charged issue of when government activity that affects private property constitutes a "taking" that requires payment to a landowner. Under the 5th Amendment to the U.S. Constitution, the government must pay owners of private property that it takes for public purposes.

Writing for a unanimous court, Justice Ruth Bader Ginsburg said temporary flooding of private land by the government is “not categorically exempt” from liability under the 5th Amendment's Takings Clause. There is “no solid grounding in precedent for setting flooding apart from all other government intrusions on property,” Ginsburg wrote. She also said the decision was not meant to “credit all, or even many” claims over temporary flooding, and that a judge must weigh factors including whether damage was intended, foreseeable, recurring or severe.

The High Court’s decision came December 6 in a lawsuit filed by the Arkansas Game & Fish Commission, which operates the 23,000-acre Dave Donaldson Black River Wildlife Management Area, and had complained about water releases by the U.S. Army Corps of Engineers from the Clearwater Dam in Missouri, about 115 miles upstream.

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