Supreme Court rules against government in flooding case

• Even temporary flooding of land constitutes a "taking"
• Decision upholds claim by Arkansas against U.S.
• Case sent back to appeals court for further review

WASHINGTON -- What the government taketh, the government must pay for.

That was the 8-0 ruling of the Supreme Court on Tuesday in a case that involved water, water everywhere for Arkansas wildlife officials for several months a year from 1993 to 2000 -- water released at a federal dam that flooded state forest land and made it temporarily unusable.

The question before the justices was simple: Did the flooding constitute a "taking" of property deserving of compensation, even though it was temporary? The lowest federal court said yes. The appeals court said no.

Justice Ruth Bader Ginsburg, writing for the full court except for Justice Elena Kagan who did not take part in the case, said the government's actions did amount to a taking.

"Government acquisition or invasion of property can be a taking even when temporary in nature," Ginsburg said. "These settled holdings lead us to conclude that government-induced flooding of limited duration, but severe impact, can amount to a taking of property warranting just compensation."

The Army Corps of Engineers released water from the Black River dam to help farmers. But the water wound up on the property of the Arkansas Game and Fish Commission, damaging or destroying forest timber. For that, state officials said, they should be compensated -- and the U.S. Court of Federal Claims awarded $5.5 million.

The appeals court reversed that decision on the basis that the flooding was temporary, but Ginsburg rejected that blanket exemption.

"Given no persuasive reason to treat flooding as a unique category, we reject the temporary-flooding exception on which the Federal Circuit grounded its decision," she said.