* US not exempt from damages for flooding from dams
* Arkansas agency challenged US Army Corps of Engineers
By Terry Baynes and Jonathan Stempel
WASHINGTON, Dec 4 The U.S. Supreme Court ruled
on Tuesday that the federal government may be required to pay
damages when it releases water from a dam that causes 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 court sided with 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 (185 km) upstream.
It claimed that releases between 1993 and 1998 led to six
years of flooding, causing the death or weakening of nearly 18
million board feet of timber and making the area harder to
The government argued that the releases had incidental
consequences, and that it had the right to balance the "benefits
and burdens" of such releases, which could also be used to
protect crops or avert flooding in specific areas.
A federal judge awarded $5.7 million for lost timber and to
regenerate forestry, but the U.S. Federal Circuit Court of
Appeals overturned that award in March 2011, saying the flooding
was only temporary and required no compensation.
Tuesday's decision reversed that ruling, and the justices
ordered the lower courts to address other government arguments
to avoid possible liability.
"We're thrilled," James Goodhart, general counsel for the
Arkansas commission, said in a phone interview. "It sends a
strong message that this kind of action is compensable under our
Constitution, and cannot be treated different from other
government intrusions on property. This reopens the door for our
agency and state to recoup our losses."
A Justice Department spokesman did not immediately respond
to a request for comment.
The commission's appeal was supported by a variety of
advocates for fish, forestry and wildlife groups, as well as
private property advocates.
Justice Elena Kagan recused herself from the case, likely
because she worked o n it in her former role as U.S. solicitor
The case is Arkansas Game & Fish Commission v. U.S., U.S.
Supreme Court, No. 11-597.