Downstream Inundations Caused by Federal Flood Control Dam Operations in a Changing Climate: Getting the Proper Mix of Takings, Tort, and Compensation

Robert Haskell Abrams, Florida A&M University College of Law
Jacqueline Bertelsen, Florida A & M University College of Law


The 2012 United States Supreme Court case Arkansas Game & Fish Commission v. United States presented the Court with a claim that the property of a landowner downstream of a flood control dam was taken without compensation as a result of non-permanent inundations of low lying portions of that parcel caused by a change in the dam's pattern of releases. The Court held that, "government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection" and must, instead, be tested according to the Court's usual precedents governing temporary physical invasions and regulatory takings. The Federal Circuit held a taking had occurred on remand, the scope of which was limited because the United States waived several key issues. In doing so, the Federal Circuit utilized language that understates the limitations on takings recoveries in such cases. Both the result and the remand opinion will encourage downstream landowners, suffering inundation losses traceable to flood control dam operations, to bring takings claims. This Article analyzes the possible bases on which compensation can be granted.