The Supreme Court's decision in Arkansas Game & Fish Commission rejected categorical exemptions for temporary government-induced flooding — but the factors that matter in this highly fact-specific analysis, and the Tucker Act framework for federal cases, require careful pleading from the outset.
I. The Structure of Flooding Takings Claims
Government-induced flooding has generated some of the oldest Takings Clause jurisprudence in the federal courts. When the government constructs a dam, modifies a watercourse, raises a levee, or manages water-release schedules in ways that inundate private land, it may effect a taking of either a permanent flowage easement (the right to flood the land continuously) or a temporary flowage easement (the right to flood intermittently over a defined or indefinite period). The distinction between a taking and a mere tort — actionable as a tort claim that the federal government cannot be sued for in claims court — has been a persistent source of litigation.
The foundational question is: when does government-induced flooding constitute a "taking" of property under the Fifth Amendment, rather than an actionable but non-compensable tort? Arkansas Game & Fish Commission v. United States, 568 U.S. 23 (2012), clarified that temporary flooding is not categorically exempt from Takings Clause liability — but the Court declined to create a categorical rule of liability either, leaving the analysis intensely fact-specific.
II. The Historical Foundation: United States v. Cress
The modern law of flowage easement takings begins with United States v. Cress, 243 U.S. 316 (1917). The United States constructed locks and dams on the Cumberland and Kentucky Rivers that raised water levels above their natural state, causing periodic flooding of private lands and impairing the operation of a privately owned mill. The property owners sued for compensation.
The Supreme Court held that the government's actions constituted a taking. The critical principle established by Cress was that the government need not permanently inundate property to effect a compensable taking: "intermittent but inevitably recurring overflows" caused by the government's modification of the waterway gave rise to a takings claim no less valid than a claim arising from continuously submerged land. Cress established that a seasonally recurring pattern of flooding — even if the land was dry for portions of the year — constitutes a physical occupation of the property sufficient to support a takings claim.
Cress also addressed the mill's riparian rights: the government's modification of the natural water flow destroyed the mill owner's right to the natural flow of water, which the Court treated as an inseparable attribute of the land. This riparian rights dimension remains relevant in cases involving not just flooding but also the diminution of water supply or the alteration of flow characteristics.
III. Arkansas Game & Fish Commission v. United States
A. Facts
Arkansas Game & Fish Commission v. United States, 568 U.S. 23 (2012), arose from the U.S. Army Corps of Engineers' management of the Clearwater Dam in Missouri. For six consecutive years, beginning in 1993, the Corps deviated from its water control plan at the request of downstream farmers, releasing water during periods that extended into the peak timber-growing season of the Dave Donaldson Black River Wildlife Management Area, owned by the Arkansas Game and Fish Commission. The cumulative effect was severe: the repeated annual flooding damaged and destroyed more than 18 million board feet of timber and substantially altered the character of the Management Area, requiring costly reclamation measures.
The Court of Federal Claims awarded the Commission $5.7 million on a taking theory. The Federal Circuit reversed, holding that government-induced flooding could give rise to a taking claim "only if the flooding is 'permanent or inevitably recurring.'" Because the Corps eventually ceased the deviations and the flooding was not destined to recur indefinitely, the Federal Circuit concluded no taking had occurred.
B. The Supreme Court's Holding
Justice Ginsburg, writing for a unanimous Court, reversed. The holding is straightforward: "recurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability." The Court rejected the Federal Circuit's categorical rule that permanent or inevitably recurring flooding is required — but it also declined to create a categorical rule of liability for any government-induced flooding, however brief.
The Court instead held that flooding cases, like other takings cases, must be "assessed with reference to the particular circumstances of each case" and not by resort to categorical rules in either direction. The Court identified several factors relevant to whether temporary flooding constitutes a taking:
- Severity of interference. The interference with property rights must be substantial, not merely incidental.
- Duration. The duration of flooding affects its compensability — not as a per se rule, but as one factor.
- Foreseeability and intent. Government action that is reasonably foreseeable to cause flooding, and is intentionally authorized, is more likely to be a taking than flooding that is an inadvertent byproduct of unrelated action.
- Causal relationship. The flooding must be causally related to the government action, not merely coincident with it.
- Investment-backed expectations. The character of the property and the owner's reasonable investment-backed expectations for its use — which may be informed by state law — are relevant.
The Court remanded for the Federal Circuit to apply these factors, having established the ceiling rule: temporary flooding is not automatically excluded from Takings Clause scrutiny.
IV. Tucker Act Jurisdiction for Federal Flooding Claims
When the government of the United States is the defendant, the takings claim cannot be brought in federal district court. 28 U.S.C. § 1491 — the Tucker Act — grants the United States Court of Federal Claims jurisdiction over claims against the United States founded on the Constitution, federal law, regulation, or express or implied contract. Takings claims under the Fifth Amendment are Tucker Act claims: the Court of Federal Claims has exclusive jurisdiction over claims exceeding $10,000.
For claims of $10,000 or less, the "Little Tucker Act," 28 U.S.C. § 1346(a)(2), permits filing in federal district court concurrent with the Court of Federal Claims. In practice, flooding takings claims against the United States almost always exceed $10,000, and the Court of Federal Claims is the proper forum.
The procedural characteristics of Court of Federal Claims litigation differ significantly from district court practice:
- There is no jury; the trial judge is the finder of fact.
- Pleading standards track the Rules of the Court of Federal Claims (RCFC), which parallel the Federal Rules of Civil Procedure.
- Discovery is generally available but may be more limited in scope than in district court practice.
- The Court has developed specialized expertise in just compensation valuation and applies a consistent body of takings doctrine.
- Attorney's fees are available to prevailing parties under the Equal Access to Justice Act where the government's position was not substantially justified.
Statute of limitations. Tucker Act claims are subject to a six-year statute of limitations under 28 U.S.C. § 2501. The accrual date for recurring flooding claims has been litigated extensively: the limitations period generally begins to run when the plaintiff knew or should have known of the taking, which in recurring flooding cases may be when the flooding pattern became predictable and caused substantial harm. Practitioners should file conservatively; the six-year period runs from each specific flooding event in cases where each event may be separately compensable.
V. State Analogs: Alabama and Florida
When the defendant is a state agency, county, or municipality — not the United States — the Tucker Act does not apply. Inverse condemnation claims proceed in state court under state constitutional and statutory frameworks.
A. Alabama
Alabama's just compensation obligation derives from Article I, Section 23 of the Alabama Constitution of 1901, which requires full compensation for property taken for public or private use. Alabama courts recognize inverse condemnation claims for flooding caused by government action.
The Alabama Supreme Court addressed recurring flooding in an inverse condemnation context in cases involving municipal stormwater management systems and drainage improvements. Alabama applies a standard analogous to the federal framework: the government's action must constitute an actual, permanent (which Florida and Alabama courts interpret as "recurrent," not just "continuous") invasion of the land amounting to an appropriation of the property interest. The Arkansas Game & Fish Commission analysis — that recurring but finite flooding is not categorically exempted — is broadly consistent with Alabama's state doctrine.
For federal cases involving Alabama's own construction projects (e.g., Alabama Power Company dams, state-managed levees), the plaintiff must pursue inverse condemnation in Alabama circuit court. For federal cases involving Corps of Engineers projects in Alabama, Tucker Act jurisdiction in the Court of Federal Claims is the proper vehicle.
B. Florida
Florida's inverse condemnation doctrine for flooding is grounded in Article X, Section 6 of the Florida Constitution. Florida courts have applied a two-prong test for inverse condemnation flooding claims: (1) the flooding must constitute an actual, permanent physical invasion of the land amounting to an appropriation; and (2) the flooding must substantially deprive the owner of the beneficial use of the land.
Critically, Florida courts have interpreted "permanent" to mean "recurrent," not "continuous." Florida is therefore broadly consistent with the federal doctrine after Arkansas Game & Fish Commission. A government drainage project that causes the plaintiff's property to flood every rainy season — even if dry in between — satisfies the "permanent" element under Florida's recurrence standard.
Florida's statute of limitations for inverse condemnation is four years from the date of the taking, Fla. Stat. § 95.11(3)(b), with accrual typically running from the date the plaintiff knew or should have known of the government-caused flooding damage.
Attorney's fees are available to successful inverse condemnation plaintiffs in Florida under Fla. Stat. § 73.091.
VI. Practice Notes
Plead taking, not tort. The distinction between a taking (compensable) and a tort (not cognizable in the Court of Federal Claims) turns on whether the government's action constituted an appropriation of property rights, or merely incidental damage. Plead that the flooding has effectively appropriated a flowage easement over the plaintiff's property — the right to inundate it periodically. Frame the damages as the diminution in value of the property burden by that easement, not as consequential flood damages.
Expert valuation. A flowage easement has a specific value: the difference between the fair market value of the property unencumbered and the fair market value with the flowage easement. Engage an appraiser experienced in easement valuation early; the Court of Federal Claims' damages framework requires this analysis.
Document the flooding timeline with precision. The causal relationship, foreseeability, and duration factors identified in Arkansas Game & Fish Commission require a detailed chronological record of each flooding event, its duration, depth, and connection to the government action. Remote sensing data, hydrological records, and Corps operational records are critical discovery targets.
Timber and crop losses. In cases involving agricultural land or timberland — like Arkansas Game & Fish Commission itself — timber volume losses and crop yield reductions are recoverable consequential damages in addition to easement-value diminution.
Talk to Yates Anderson
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Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.