Posted on October 3, 2012 at 4:52 pm by Lyle Denniston
On Wednesday, the Supreme Court was well into its exploration of a legal standard for deciding whether the government must pay for damage to private property when it turns loose water from a river dam, and flooding is caused — over and over again. But as soon as the government’s lawyer took his turn at the lectern, the Justices heard the equivalent of a plea that “trust us” should be the standard, that it is up to the government to decide on “burdens and benefits.” This boldness was something of a jolt to the oral argument in Arkansas Game & Fish Commission v. United States, and left some Justices in wonderment. “I must be slow today,” said Justice Sonia Sotomayor. “I am having trouble with your articulation of your test.”
Basically, Deputy U.S. Solicitor General Edwin S. Kneedler offered a test that apparently would allow the government to operate the river dams it builds in a way that it deeems best, on the premise that those downstream should realize that having riverfront property entails a lot of risks. Moreover, the test is based in part on the fact that Congress has mandated that the government cannot be made to pay for the “incidental consequence” of downstream flooding from dams. The latter point prompted Justice Antonin Scalia to say that Congress cannot overrule the Constitution’s Taking Clause.
This case had reached the Court on the issue of whether the government must pay for downstream flooding due to water releases from a dam, if the flooding was only temporary. That is what the Federal Circuit Court had concluded, overturning a $5.6 million award to the Arkansas Game & Fish Commission for harms done to its wildlife and forest management area along the Black River, plus more than $178,000 to regenerate the forest habitat in that area. While Kneedler, on questioning by the Court, said that the government accepted the Circuit Court ruling, it was clear that the government was seeking a much broader form of legal cover for its operation of river-regulating dams.
The Commission sent one of its staff lawyers, James F. Goodhart, to argue the case, and — although pressed hard to spell out a standard — Goodhart held diligently to his view that the government should have to pay compensation whenever its water releases caused a “physical invasion” of private property. It should not make any difference, he argued, that the flooding downstream from the Clearwater Dam did not sit on the land permanently as if it were a lake. The harms done by the fluid invasion, he said, are sizable and lasting, including the destruction of valuable timber and the destruction of wildlife habitats.
Goodhart’s most aggressive challenger was Justice Stephen G. Breyer, who said that he and his law clerks had found eleven Supreme Court decisions that drew a distinction between temporary and permanent water flows, with temporary flooding treated as if it were a trespass, and permanent flooding treated as a “taking” under the Fifth Amendment. What should the Court do with those precedents? Breyer wondered. Goodhart tried to draw some distinctions among them that might help his claim that even a temporary flooding can amount to a “taking,” but it was not clear that he had satisfied Breyer. The temporary-versus-permanent distinction, Breyer countered, “is not perfect, but let’s go for it.”
Justice Anthony M. Kennedy pressed Goodhart to lay out “a baseline of expectations” that property owners have as to when they are entitled to compensation for a “taking” for damage due to upstream water flows when the Corps of Engineers chooses to open the gates on a dam as part of choices about how to regulate the river, both downstream and upstream. Goodhart, half-heartedly, said that he could not define “a bright-line test” but that courts could sort out when the Corps of Engineers makes a deliberate decision to release waters, knows from experience that it will cause flooding, and in fact knows whose land downstream is going to be flooded, each year that the Corps opted to open the gates. They made that choice over a six-year period, the Commission lawyer said, and they knew the consequences.
When Kneedler rose to argue, he began with the same point that Breyer had been making — that the Court had issued a string of precedents that required compensation for a “taking” due to water flows only when the effect was “permanent,” amounting to “actual appropriation” of private property. But, after being asked by Chief Justice John G. Roberts, Jr., what his “taking” standard is, the government attorney insisted that the Court should not look at this case as if it involved a government choice to cause flooding. What the case involved, he said, was “incidental downstream consequences of the flowage.”
When Roberts asked whether it would be a “taking” if the Corps advised downstream property owners that it was going to flood their lands by water released in March and April, so they could not use their property at that time, Kneedler said that would not be a “taking” requiring compensation. What is important, in the operation of dams by the Corps, the attorney said, is that “the government is adjusting the benefits and burdens” of living alongside a river that is regulated by a government dam.
Kneedler did concede that it would be a “taking” when the Chief Justice suggested that the government might back up a fleet of trucks at the reservoir behind the dam, pump them full of water, then drive the trucks downstream and dump the water on specific private lands. But, Kneedler insisted,that was not what the Corps has been doing at Clearwater Dam; rather, it has been operating the dam for the benefit of the Black River basin, and the flooding that occurs when it releases water is only “an incidental consequence.” It is not intended to target any particular property owners, he added. Kneedler also made the point that, the further the property owners are downstream from the dam, the less claim they would have that the Corps is responsible for the flooding.
Ultimately, after Justice Sotomayor told Kneedler she was baffled by the test he was laying out, he indicated that there could be no claim for flooding downstream from the dam — period. Justice Kennedy suggested that Kneedler’s argument reminded him of the German creators of a rocket, who said they made the rockets to go up, but it was not their problem where they came down. Kneedler countered that the Corps of Engineers had done nothing more than make a “series of temporary decisions” about when to release water from Clearwater Dam. He also insisted that, when the Corps did make such releases, it had no idea where the water would wind up. The water behind the dam, he also said, is not the government’s water.
Justice Antonin Scalia asked Kneedler whether it was the government’s position that, even if the flooding were permanent, there still would not be a “taking” because the flooding was all downstream. Kneedler said yes. Flooding happens, he said, “and when you live on a river, that’s what happens.”
Trying to show that the Corps of Engineers has not behaved arbitrarily, he said it seeks to coordinate its water releases from dams with all of those that might be affected. But when the Chief Justice asked if ten landowners came to the Corps. and they worked out an agreement that owners 1 and 3 through 10 would not be harmed, but owner 2 would be, Kneedler said No. 2 would have no claim. “No. 2 just loses?” Justice Sotomayor asked. Kneedler replied that No. 2 might be able to sue under another federal law, but would not be entitled to compensation for the damage due to the flooding.