WASHINGTON – Private property owners might deserve payment when public agencies temporarily flood their land, the Supreme Court ruled Tuesday in a case closely watched by farmers around the country.
Pleasing property-rights advocates, the court emphatically declared in an 8-0 decision that even temporary flooding can amount to a “taking” for which the Constitution requires compensation. The ruling in a case that arose from Arkansas will reach everywhere that government actions affect waterways.
“Because government-induced flooding can constitute a taking of property, and because a taking need not be permanent to be compensable, government-induced flooding of limited duration may be compensable,” Justice Ruth Bader Ginsburg wrote.
A stalwart of the court’s liberal wing, Ginsburg nonetheless led conservatives as well in rejecting the Obama administration’s insistence that temporary floods should be exempt from the Fifth Amendment’s requirement that private property won’t “be taken for public use, without just compensation.”
The 19-page ruling means that the Arkansas Game and Fish Commission might get paid eventually for the Black River flooding damage that resulted when the Army Corps of Engineers released water from the Clearwater Dam in neighboring Missouri. From 1993 to 2000, the flooding wiped out more than 18 million board feet of timber in a wildlife management area about 115 miles from the dam.
The ruling also empowers more distant property owners such as the Wolfsen Land and Cattle Co., located along the San Joaquin River in California. Wolfsen joined other California farmers in filing a friend-of-the-court brief supporting the Arkansas Game and Fish Commission.
“I think it’s directly on point for anyone who owns riparian property, whether it’s along the San Joaquin River or along the river in Arkansas,” Wolfsen’s Washington-based attorney Roger Marzulla said after the court’s decision.
Like their Arkansas counterparts, the California farmers say their land faces inundation because of government actions.
Under a 2009 federal law, state and federal officials are trying to restore water flows and a viable salmon population to the San Joaquin River. Last week, the first salmon were put back in the river. In a lawsuit, Wolfsen and other farming companies seek compensation for the flooding of nearly 13,000 acres in western Fresno and Merced counties. The farmers and the Justice Department are now in confidential settlement talks, Marzulla said.
The Pacific Legal Foundation, a conservative advocacy group based in Sacramento, Calif., that filed its own amicus brief supporting Arkansas, praised the court’s decision as “an important victory for the rights of all property owners.”