The U.S. Supreme Court just issued a unanimous decision in Arkansas Game and Fish Commission v. United States, allowing a landowner to proceed with a takings claim for compensation from temporary flooding caused by the federal government’s operation of a dam. The decision reversed a 2011 Federal Circuit Court of Appeals decision that would have only allowed takings claims for “permanent or inevitably recurring” flooding.
However, the Court’s decision allowing a landowner’s takings claim for temporary flooding to proceed as a matter of federal takings law is not the end of the case. The more difficult and fundamental issue is whether, as a matter of state property law, ownership of riparian land in Arkansas comes with some expectation of temporary flooding. Justice Ginsburg wrote: “The determination whether a taking has occurred includes consideration of the property owner’s distinct investment backed expectations, a matter often informed by the law in force in the State in which the property is located.”
Then what does Arkansas water law say about a riparian property owner’s expectations regarding temporary flooding? The parties and lower courts did not address this fundamental issue, so Professors Robert Abrams, Zyg Plater, and I filed an amicus curiae brief detailing Arkansas water law, notably the balancing of interests implicit in defining a riparian property right. Justice Ginsburg’s opinion had a nice acknowledgment of our brief (titled Amicus Curiae Brief of Professors of Law Teaching in the Property Law and Water Rights Fields) in the first footnote of the opinion (slip opinion page 13). In reversing and remanding the case back to the Federal Circuit, the Supreme Court emphasized the need to examine state property law and other key facts before determining what compensation (if any) is due. The case demonstrates the continuing importance of common law water rights doctrines, even as many states are moving towards permit systems and administrative regulation of water use.