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Supreme Court: government may be liable for flood damage

By Terry Baynes and Jonathan Stempel

WASHINGTON (Reuters) - The U.S. Supreme Court ruled on Tuesday that the federal government may be required to pay damages when it releases water from a dam that causes temporary flooding for a property owner downstream.

The case addressed the politically charged issue of when government activity that affects private property constitutes a "taking" that requires payment to a landowner. Under the 5th Amendment to the U.S. Constitution, the government must pay owners of private property that it takes for public purposes.

Writing for a unanimous court, Justice Ruth Bader Ginsburg said temporary flooding of private land by the government is "not categorically exempt" from liability under the 5th Amendment's Takings Clause.

There is "no solid grounding in precedent for setting flooding apart from all other government intrusions on property," Ginsburg wrote.

She also said the decision was not meant to "credit all, or even many" claims over temporary flooding, and that a judge must weigh factors including whether damage was intended, foreseeable, recurring or severe.

The court sided with the Arkansas Game & Fish Commission, which operates the 23,000-acre Dave Donaldson Black River Wildlife Management Area, and had complained about water releases by the U.S. Army Corps of Engineers from the Clearwater Dam in Missouri, about 115 miles upstream.

It claimed that releases between 1993 and 1998 led to six years of flooding, causing the death or weakening of nearly 18 million board feet of timber and making the area harder to manage.

The government argued that the releases had incidental consequences, and that it had the right to balance the "benefits and burdens" of such releases, which could also be used to protect crops or avert flooding in specific areas.

A federal judge awarded $5.7 million for lost timber and to regenerate forestry, but the U.S. Federal Circuit Court of Appeals overturned that award in March 2011, saying the flooding was only temporary and required no compensation.

Tuesday's decision reversed that ruling, and the justices ordered the lower courts to address other government arguments to avoid possible liability.

"We're thrilled," James Goodhart, general counsel for the Arkansas commission, said in a phone interview. "It sends a strong message that this kind of action is compensable under our Constitution, and cannot be treated different from other government intrusions on property. This reopens the door for our agency and state to recoup our losses."

A Justice Department spokesman did not immediately respond to a request for comment.

The commission's appeal was supported by a variety of advocates for fish, forestry and wildlife groups, as well as private property advocates.

Justice Elena Kagan recused herself from the case, likely because she worked on it in her former role as U.S. solicitor general.

The case is Arkansas Game & Fish Commission v. U.S., U.S. Supreme Court, No. 11-597.

(Reporting by Terry Baynes in Washington and Jonathan Stempel in New York; Editing by Bill Trott and Stacey Joyce)

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