Deviation by Army Corps from operating plan, resulting in a temporary or ad hoc flowage easement, does not constitute a taking

Deviation by Army Corps from operating plan, resulting in a temporary or ad hoc flowage easement, does not constitute a taking

Taking cases have been reviewed in prior posts.  To state that the law is convoluted, complex, and obscure is to state the obvious.

In Arksansas Game & Fish Commission v. U.S., 2011 U.S. App. LEXIS 6417 (Federal Circuit: 3/30/11), the U.S. appealed a judgment of the U.S. Court of Federal Claims for Plaintiff Arkansas, that a temporary taking could be in violation of the Fifth Amendment, and that thus the U.S. had taken the property of Plaintiff without just compensation.  The acts complained of were temporary deviations from a federal water release plan governing an adjacent dam that allegedly increased flooding on Plaintiff's property.  Plaintiff cross-appealed on claims that the $5.7 million damage award was insufficient.

The Federal Circuit Court of Appeals reversed the judgment for Plaintiff, holding that the theory underlying the ruling was contrary to governing law.  It found that any analysis of whether the government's decision to release the water resulted in a taking that was compensable under the Fifth Amendment had to begin with a consideration of whether the flood control policy resulting in the discharge was a permanent or temporary one.  This was key factor because releases of water that were ad hoc or temporary were, by their very nature, not an "inevitably" recurring event, which was essential to the finding of a flowage easement. Though the temporary deviations might be a sufficient basis for tort liability, they could not constitute a compensable Taking as a matter of law.