The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Federal Circuit Rules Temporary-but-Recurring Flooding of Property by the Government is an Automatic per se Taking

If the government floods private property on a recurring basis, it is automatically required to pay compensation, and owners' claims are not subject to a balancing test.


Flooding (AI-generated image)


In its recent decision in Ideker Farms, Inc. v. United States, the US Court of Appeals for the Federal Circuit ruled that temporary, but continuously recurring, flooding of private property by the government qualifies as a per se taking under the Takings Clause of the Fifth Amendment. It thereby automatically requires payment of "just compensation." It is not subject to a balancing test of the kind that applies to other non-continuous flooding cases. The Federal Circuit is the appellate court whose duties include (among other things) hearing appeals of takings cases filed against the federal government. So its takings jurisprudence has great precedential force.

In this case, the US Army Corps of Engineers and the Fish and Wildlife Service had adopted changes to previous practices controlling the flow of the Missouri River, resulting in recurring flooding of land belonging to property owners in the area, including farmers whose crops were damaged or destroyed. The evidence suggests that the agencies will keep engaging in such intermittent flooding indefinitely. Here is the key passage from the court's takings analysis, in an opinion written by Chief Judge Kimberley Moore:

The trial court accepted based on the parties' stipulation that the flooding in this case is permanent, not temporary, in nature. Phase II, 151 Fed. Cl. at 592–93. In short, the Government has not ceased and does not plan to cease flooding Plaintiffs' lands. To the extent Arkansas Game & Fish II's narrow holding and reiteration of the well-established principle that permanent yet intermittent physical invasions are per se takings is not enough, the Supreme Court's decision in Cedar Point, issued after the trial court
decision in this case, makes that abundantly clear. It stated that the "approach in Arkansas Game and Fish Commission reflects nothing more than an application of the traditional trespass-versus-takings distinction to the unique considerations that accompany temporary flooding." 141 S. Ct. at 2078–79….

In contrast to the temporary intermittent flooding at issue in Arkansas Game & Fish II, Cedar Point explained that permanent intermittent flooding is a physical taking subject to a per se rule. Id. at 2071…. The "government likewise effects a physical taking when it occupies property–say by recurrent flooding as a result of building a dam. These sorts of physical appropriations constitute the 'clearest sort of taking,' and we assess them using a simple, per se rule: The government must pay for what it takes." Id….

This is not to say that an analysis of whether a permanent taking or a trespass has occurred might not overlap in part with the Arkansas Game & Fish II analysis of whether a temporary taking or trespass occurred. But sometimes distinguishing between takings and trespasses will be much simpler. This is such a case. Where the government takes a permanent right of access, akin to an easement in gross, even if used only intermittently, it is unquestionably an appropriation of the owner's right to exclude. It is undisputed that the Corps has permanently burdened Plaintiffs' land with a right to access their land with flood waters….  And, as in Cedar Point, where California granted union workers "a formal entitlement to physically invade" the farmers' land, 141 S. Ct. at 2080, here the Government has permanently caused recurring physical occupation of Plaintiffs' land by floodwaters. The fact that the floodwaters come and go during the year, i.e., are intermittent, does not negate the existence of a taking. Those considerations "bear only on the amount of compensation." Id. at 2074.

I think C.J. Moore is right to cite the Supreme Court's ruling in Cedar Point Nursery v. Hassid (2021). If indefinitely recurring mandated access by union organizers is a per se taking, the same goes for indefinitely recurring flooding. If anything, the latter is likely to be far more intrusive and far more disruptive of the property owners' rights.

But I would have taken the point further. Cedar Point did not merely say that indefinitely recurring physical invasions are per se takings. It held that, as a general rule, "a physical appropriation is a taking whether it is permanent or temporary." Even temporary physical invasions qualify as per se takings under this reasoning, without the need for any complex balancing tests. To my mind, the same reasoning applies to temporary deliberate flooding, which—as already noted—is an even more severe physical burden on property rights than most other physical invasions, including the one at issue in Cedar Point.

In fairness, the Federal Circuit didn't need to go that far to decide this particular case. But she also need not have indicated that multifactor balancing tests should continue to apply "[i]n cases that are closer calls than this one." After Cedar Point, that should not be the case, at least not in situations where the government has deliberately authorized or undertaken the physical invasion at issue.

I expect this will not be the last case where courts seek to apply Cedar Point to situations where the government engages in deliberate flooding of private property.

Robert Thomas has a helpful and detailed discussion of various aspects of this decision at the Inverse Condemnation blog.

I wrote about the Supreme Court's ruling in  Arkansas Game and Fish Commission v. United States (2012), which established a multifactor balancing test for most flooding takings cases, in this article, published soon after the decision came down.  I and other commentators predicted that the decision would lead to litigation on how to apply its far-from-clear test. And that has indeed happened in the years since.