We will find out next year when the United States Supreme Court hears and decides the case of Arkansas Game & Fish Commission v. United States. In this case, the United States Corps of Engineers implemented its water-control plan for the operation of the Clearwater Dam. Implementation consisted of the release of water that caused temporary flooding on private property, destroying nearly 18 million board feet of timber. The lower court ruled that while intermittent flooding of private land can constitute a taking of an easement, “government-induced flooding not proved to be inevitably recurring occupies the category of mere consequential injury, or tort.” In the lower court’s opinion, the question comes down to whether the flooding is temporary or “inevitably recurring.” These are the kinds of distinctions that keep lawyers and courts busy. The importance of whether the flooding is a tort (injury) or a takings centers on damages. Torts entitle the injured party to actual damages suffered. Takings entitle the property owner to just compensation for the value of the land taken. The lower court did recognize that “in other contexts the distinction between a temporary and permanent release plan may be difficult to define.” Perhaps the U.S. Supreme Court will provide further guidance on the distinction or eliminate it altogether.
