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U.S. Supreme Court Holds Government May Be Liable for Unconstitutional Takings Arising from Temporar

This week, the Supreme Court held that the U.S. Government could be found liable for unconstitutional takings attributable to temporary flooding resulting from federal reservoir operations. See Arkansas Game and Fish Commission v. United States (Decided December 4, 2012). The Army Corps of Engineers (Corps) operates a dam that temporarily flooded land owned by the Commission. The Commission sued, alleging the temporary flooding constituted a taking of property that entitled the Commission to compensation. The Court found temporary Government-induced flooding was not exempt from Takings Clause review. The Court affirmed prior rulings that government-induced flooding and seasonally recurring flooding can constitute takings and that takings temporary in duration can be compensable. The Government had urged the Court to establish a definitive rule that there could be no temporary taking caused by floods. The Court found no basis for distinguishing flooding from other government intrusions on property, potentially opening up the United States (and other governmental and quasi-governmental entities) to taking claims for comparable water management activities.

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