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Supreme Court wades into flood-control compensation argument

By Michael Doyle, McClatchy Newspapers –

WASHINGTON — In a case closely watched by farmers, the Supreme Court wrestled Wednesday with tough questions about when the federal government must pay landowners for temporary flooding damages.

The case arises from Arkansas, and the justices spent an hour Wednesday morning jousting over when river flooding becomes a “taking.” Conservative justices already seem to share the landowners’ belief that they’re owed compensation for even temporary flooding from an Army Corps of Engineers facility.

“So if the government comes in and tells a landowner, ‘Every March and April we’re going to flood your land, so you can’t use it from now on’ … that’s not a taking?” a clearly skeptical Chief Justice John Roberts Jr. pressed the Obama administration’s lawyer.

Justice Antonin Scalia added that the downstream flooding in Arkansas that wiped out many hardwood trees was a “foreseeable and certain” consequence of the federal flood-control actions, and even liberal-leaning justices sounded frustrated with the government’s position that no compensation was due for downstream damages.

“I must be slow today,” Justice Sonia Sotomayor told Deputy Solicitor General Edwin Kneedler, “because I’m having significant problems with your articulation of your test” for when a taking occurs and payment is due.

The case heard Wednesday has national implications, though it arises out of specific set of incidents along the Black River in Arkansas. From 1993 to 2000, the Army Corps of Engineers released so much water from the Clearwater Dam in Missouri that the resulting flooding downstream destroyed or damaged more than 100,000 trees.

When the government takes private property, it owes compensation under the Fifth Amendment. There’s no question that creating a reservoir by flooding land behind a new dam amounts to a taking for which payments are due. In the Arkansas case, though, a lower court reasoned that the downstream Black River inundation was different because it was a temporary, albeit repeating, affair in which the waters eventually receded.

“These were floodwaters … that ended up on the land as an incidental consequence of the operation of the flood-control project,” Kneedler said, adding that “riparian ownership carries with it certain risks.”

Attorney James F. Goodhart, representing the Arkansas Game and Fish Commission, which owns the Black River land, responded that flood damages in Arkansas weren’t merely “incidental” but rather a “direct, natural and probable result” of federal water releases.

A decision is expected by June.

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