Temporary Flooding May Give Rise to a Takings Claim


By Dana Maine and Ali Sabzevari
A fundamental part of our Takings Clause jurisprudence holds that when the Government physically takes possession of an interest in property for some public purpose, it has a duty to compensate the former owner.  There is a multitude of ways in which government actions or regulations may give rise to Takings Clause liability.  Recently, however, the United States Supreme Court directly addressed the issue of whether government-caused temporary flooding might amount to a compensable taking.

On December 4, 2012, the United States Supreme Court issued a decision, Arkansas Game & Fish Comm’n v. United States, which instructed lower courts not to be deterred from finding that government-caused temporary flooding may result in a taking under the Fifth Amendment of the U.S. Constitution.
The Supreme Court held that “government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.”  By doing so, the Court reversed a Federal Circuit decision, which had found that flood conditions needed to be “permanent or inevitably recurring” before the resulting damage would constitute a taking under the Fifth Amendment.
Although Supreme Court precedent had already established that government-induced flooding could constitute a taking, and that a taking need not be permanent to be compensable, under the guise of Arkansas Game & Fish Comm’n, government-caused recurrent floodings, even if of limited duration, may give rise to Takings Clause liability.
Despite ultimately remanding the case to determine whether a taking had occurred, the Supreme Court, in emphasizing the case-by-case approach required to complete this task, highlighted several relevant factors to consider:

  • Time or duration;
  • Severity of the government interference;
  • The degree to which the intrusion is intended or is the foreseeable result of authorized governmental action;
  • The character of the land at issue; and
  • The owner’s reasonable investment-backed expectations regarding the land’s use.

Looking ahead, local governments should be cognizant that a temporary government-caused flooding may give rise to Takings Clause liability.
For more information, contact Dana Maine at 770.818.1408 or [email protected] or Ali Sabzevari at 770.303.8633 or [email protected].