Federal Circuit Rules Recognize Flooding Of Property A Government’s Automatic Taking! 

In a significant ruling, the US Court of Appeals for the Federal Circuit has declared that the temporary, yet continuously recurring, flooding of private property by the government will now be recognized as an automatic per se taking, Reason.com reported.

Federal Circuit Rules Recognize Flooding Of Property A Government’s Automatic Taking! (PHOTO: NRDC)

Federal Circuit Rules On Flooding Of Property

The decision, which falls under the purview of the Takings Clause of the Fifth Amendment, establishes that affected property owners are entitled to receive “just compensation” without the need for a balancing test. The Federal Circuit, known for its jurisdiction over takings cases against the federal government, holds considerable precedent-setting power in this area of law.

The case in question, Ideker Farms, Inc. v. United States, involved landowners whose properties suffered recurrent flooding due to changes made by the US Army Corps of Engineers and the Fish and Wildlife Service in regulating the flow of the Missouri River.

The flooding resulted in severe damage and destruction of crops, impacting numerous property owners. The court’s analysis emphasized the permanent and continuous nature of the flooding, highlighting that the government did not plan to cease its activities. This ruling aligns with the Supreme Court decision in Cedar Point Nursery v. Hassid (2021), which recognized that indefinite recurring physical invasions constitute per se takings.

While the Federal Circuit’s decision focused on the specific case at hand, legal experts believe it sets an important precedent for future flooding-related disputes. The ruling clarifies that even temporary deliberate flooding, which can be highly disruptive to property owners’ rights, should be treated as a per se taking without the need for complex balancing tests.

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Federal Circuit Rules Aligned With Supreme Court

The decision aligns with the Supreme Court’s stance that physical appropriations, whether permanent or temporary, qualify as takings.

Although the court did not delve into the application of Cedar Point to temporary flooding, legal commentators predict that this ruling will have far-reaching implications. It is expected to prompt further litigation and analysis of how the per se taking doctrine should apply to cases involving deliberate flooding by the government.

The Federal Circuit’s ruling underscores the significance of property rights and the obligation of the government to provide just compensation when interfering with those rights through recurrent flooding.

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