Congratulations: if you understood that headline (much less are eager to read this post), you are officially a takings geek.
As we noted earlier, after the Supreme Court issued its decision in Arkansas Game and Fish Comm'n v. United States, No. 11-597 (Dec. 4, 2012), the Court of Federal Claims in Big Oak Farms, Inc. v. United States said it would reconsider its dismissal of that case (which was based on the now-vacated Federal Circuit decision in Arkansas Game), and asked the parties to brief the effect of the Supreme Court's opinion.
The property owner in Big Oak Farms is seeking compensation for the 2011 flooding of its land after the U.S. Army Corps of Engineers blew up a levee on the Mississippi River in order to, in the plaintiff's words, "sacrifice Plaintiffs' land to superimposed water, sand, and gravel in order to benefit the public diverting high water away from other personal and real properties in and around Cairo, Illinois." More here, including video of the flooding.
The CFC dismissed the property owner's case "because their takings claim was based on the single May 2, 2011 flooding event." Subsequently, the Supreme Court in Arkansas Game rejected the rule that flooding must be "permanent" in order to be a taking, and held that lower courts must apply several factors to determine whether government-caused flooding is compensable. The CFC then asked the parties for briefing on the effect, if any, of Arkansas Game on the dismissal. We posted the initial supplemental briefs in the case here, and the response briefs here.
The CFC has now issued its Order Following Arkansas Game (May 23, 2013) in which it concludes the Supreme Court's opinion "does not impact this court's dismissal of plaintiff's takings claims," because "[t]he Supreme Court did not address whether a single flood can give rise to a claim for a taking as opposed to a tort." In other words, like the old doctrine of every dog getting a free bite, the CFC concluded that a single instance of flooding could never be a taking as a matter of law. Which to us seems odd, given that the Supreme Court just concluded in Arkansas Game that per se rules such as these don't hold water, so to speak.
The CFC declined to revisit the dimissal, holding that Arkansas Game did not disturb Federal Circuit precedent that flooding must be both "substantial and frequent enough to rise to the level of a taking." Yes, the flooding was substantial. But it wasn't "frequent," since it was just a one-time thing: "Here, plaintiffs fail to allege any facts to suggest that the government has caused flooding on their property on a repeated basis."
Absent from the CFC's brief analysis? Any mention of the case which the Supreme Court led off its Arkansas Game opinion with, Armstrong v. United States, 364 U.S. 40, 49 (1960). Arkansas Game reemphasized Armstrong's rationale that "[t]he Takings Clause is 'designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.'" Which seems to be exactly what the plaintiffs in Big Oak are alleging: that in order to protect the public at large, the Corps caused their land to flood; why should they alone be forced to bear the entire burden for this public good?
Thus, the CFC has concluded that although the Supreme Court rejected per se rules in most flood cases, held that most flooding cases should not be analyzed substantially differently than other takings cases, reemphasized the Armstrong rationale, and held that temporary flooding can be a taking, the Court did not mean to disturb the Federal Circuit's per se rule of no liability for a single flood (in contrast to other takings cases), even in circumstances where the Armstrong rationale seems fully applicable. All as a matter of law.
That's a long sentence, but you get the drift. If a temporary flood can be a taking, there seems to be no reason that a one-time flood cannot. The CFC's tort/takings distinction is not explained in the Order.
Will this decision hold up on appeal? It might, but it shouldn't. The Court in Arkansas Game held that the temporary nature of flooding did not automatically insulate the government from takings liability, and we'd hope the Court would apply a similar rule to a single instance of flooding. For what is a one-time flood, but a "temporary" flood of shorter duration?