April 18th, 2016 — By — In Articles

Property Owners Entitled to Just Compensation for Intentional Flooding of Their Land

In some inverse condemnation cases (in which the government takes private property without properly exercising its power of eminent domain), the taking involves some sort of constructive use, such as the building of a road, sidewalk, utility infrastructure or park. These uses are most often intended to be permanent – and whether the taking involves a transfer of ownership or establishment of an easement or right-of-way, the private landowner loses some or all of his or her property rights for good.

But, what happens when the government comes onto private property, temporarily floods it, and then leaves? Does this constitute a taking requiring payment of just compensation? The U.S. Supreme Court thought so 2012, and a California appellate court recently agreed.

Temporary Intentional Flooding Constitutes a Taking

The 2012 case, Arkansas Game & Fish Commission v. U.S. (in which Owners’ Counsel of America filed an amicus curiae brief in support of the property owner), involved the federal government’s repeated flooding of forest land owned by the Arkansas Game and Fish Commission. The lower court had ruled that the flooding did not constitute a taking based exclusively the fact that it was temporary in nature. The Arkansas Game and Fish Commission appealed, and the Supreme Court overturned the lower court’s decision.

Writing for the unanimous Court, Justice Ruth Bader Ginsberg stated:

Government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence . . . of a compensable taking.

Other factors the Supreme Court considered relevant to the determination of whether a landowner is entitled to just compensation for intentional flooding were:

  • The degree to which the flooding is foreseeable or intended by the government;
  • The character of the land;
  • The landowner’s “reasonable investment-backed expectations” regarding use of the land; and,
  • The severity of the interference with the landowner’s use caused by the flooding.

In the California case, Pacific Shores Property Owners Ass’n v. Dep’t of Fish and Wildlife, No. C070301 decided Jan. 20, 2016, the specific issue involved was the Department of Fish and Wildlife’s decision to reduce protections afforded to flood-prone private property – therefore resulting in increased flooding. The Department of Fish and Wildlife argued that it’s policy to provide a reduced level of flood protection wasn’t a taking, and that it would have had to cause more flooding than would naturally occur without protection in order to be liable for just compensation. The court disagreed concluding that the Department was strictly liable for its intentional flooding of private property.

In holding that the Department’s actions constituted an inverse condemnation, the court likened the case to prior cases in which intentionally diverting water onto private property had been held to constitute a taking. As in these cases and the Supreme Court case discussed above, even though the flooding was temporary, it was still a taking under the Fifth Amendment.  As a result, the affected property owners were entitled to the payment of just compensation.

Has the Government Flooded Your Property? Contact Owners’ Counsel of America

Owners’ Counsel of America (OCA) is a nationwide network of the country’s leading eminent domain and property rights lawyers. If the government has flooded your land, an inverse condemnation attorney with OCA can help you assess and enforce your legal rights. For more information about OCA, or to speak with an attorney in your state, call (877) 367-6963 or contact us online today.

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