WASHINGTON – The U.S. Supreme Court heard oral arguments Wednesday in an Arkansas case that could clarify when the federal government can be held liable for its flood control actions.
The U.S. Court of Appeals for the Federal Circuit last year overturned a ruling that would have awarded the Arkansas Game and Fish Commission $5.7 million for hardwood timber lost over six years of summer flooding at the Dave Donaldson Black River Wildlife Management Area in northeastern Arkansas.
The Court of Federal Claims had found that the U.S. Corps of Engineers deviated from its standard water release program during the 1990s, leading to the flooding that damaged much of the 23,000-acre management area downstream.
The Appeals Court, however, determined that the Fifth Amendment guarantee that landowners be compensated when the government takes their land for public use did not apply because the government actions resulting in a flood were temporary actions and not permanent.
The hour-long argument Wednesday in the commission’s appeal before the at the Supreme Court drew a number of questions over where the line should be drawn.
Deputy Solicitor General Edwin Kneedler, arguing for the government, said the Army Corps of Engineers should not have to compensate downstream landowners whose property is temporarily flooded.
"It is in the nature of living along a river. Riparian ownership carries with it certain risks and uncertainties, from weather, from intervening causes," Kneedler said.
James Goodhart, a Little Rock attorney representing the Arkansas Game and Fish Commission, argued that flooding should not be treated any differently than any other type of government "taking," and that in this case there was "substantial intrusion" that demands compensation.
"Apply the rule of law here for physical taking and look at it as the Court of Federal Claims did: Was there a direct physical injury? Did it result in substantial intrusion on the commission’s property? If so … there should be just compensation," Goodhart said.
Justice Antonin Scalia seemed to favor the property owners.
"The issue is who is going to pay for the wonderful benefit to these farmers. Should it be everybody, so that the government pays, and all of us pay through taxes, or should it be this particular sorry landowner who happens to lose all his trees?" Scalia said. "That doesn’t seem to me particularly fair."
Justice Elena Kagan recused herself from the case.