A quick one from the Indiana Supreme Court (thanks to our Pacific Legal Foundation colleague Sam Spiegelman for the heads-up on this one).
In Town of Linden v. Birge, No. 22S-PL-352 (Mar. 7, 2023), the court held that intermittent government-induced flooding of property is treated as a permanent invasion and a per se taking if the flooding is inevitably recurring.
A Town owned and maintained drain fell into disrepair, "resulting in frequent flooding of the Town" so replacement and upgrade was in order. The Town did so and formed an improvement district to fund it. The Birge property was assessed $7k, and after some back-and-forth about the location and placement of a manhole cover on the Birge property, the upgrade project went forward. But "[a]fter completion of the project in late 2012, low-lying portions of the Birges’ Property flooded after any heavy rainfall, encumbering the Birges’ farming enterprise. So, rather than pay the $7,679 assessment, the Birges sued the Town, County, and others (collectively, the Defendants) for inverse condemnation." Case dismissed for governmental immunity, but the court of appeal reversed.
Now dealing with the merits, the trial court concluded this was a taking. The Town solved its own flooding problem by, in essence, shifting the flood waters from its own property to the Birge property. Their property floods during every heavy rainfall. While merely recurring because the floodwaters eventually recede, the trial court treated this as a permanent physical invasion.
The court of appeals, however, had a different view. True, under Arkansas Game and Fish, flooding need not be permanent to be deemed a taking. But when flooding isn't permanent, the court applies that long list of factors that Arkansas Game set forth.
The Indiana Supreme Court agreed to hear the case and disagreed with the court of appeals:
Based on this precedent, we analyze a flooding-related takings claim as follows: (1) if the flooding is continuous or “intermittent but inevitably recurring,” and the invasion is “substantial,” then it results in a per se taking; (2) if, on the other hand, the flooding is temporary or of “finite duration,” then the Arkansas Game factors apply.
Slip op. at 8.
The court relied on United States v. Cress, 243 U.S. 316 (1917), where the Supreme Court held that although the flooding itself was temporary and the waters eventually receded, the government's building of a lock and dam that resulted in frequent flooding was a "permanent condition" resulting from the dam being built. "The 'character of the invasion' determines whether a taking occurred, the Court emphasized, “not the amount of damage resulting from it, so long as the damage is substantial." Slip op. at 7 (quoting Cress, 243 U.S. at 329).
In contrast to Arkansas Game where the flooding was temporary and finite (by the time the Court heard the case, the feds had stopped flooding Arkansas' property), here, the flooding is recurrent and indefinite. It rains, it floods:
Unlike in Arkansas Game, where the “recurrent floodings” were of “finite duration” (lasting from 1993 to 2000), 568 U.S. at 27 (emphasis added), the floodings here are repetitive and of indefinite duration—i.e., they amount to a “permanent condition,” see Cress, 243 U.S. at 327. As the trial court expressly found, and as the record evidence supports, the drain reconstruction project has resulted in “repeated flooding events” on the Birges’ Property due to increased pressurization at the Transfer Point during “every heavy rainfall.” App. Vol. 5, p. 59; see Tr. Vol. 2, p. 56 (expert testifying to the same effect). In other words, the flooding here amounts to a permanent physical invasion by way of “intermittent but inevitably recurring overflows.” See Cress, 243 U.S. at 328 (emphasis added). Indeed, so long as the Property sustains “heavy rainfall” (or unless and until the County takes the necessary corrective measures), the flooding will persist indefinitely. This type of physical appropriation reflects the “clearest sort of taking,” which we assess by “using a simple, per se rule: The government must pay for what it takes.” See Cedar Point Nursery v. Hassid, 141 S.Ct. 2063, 2071 (2021) (internal quotation marks and citations omitted).
Slip op. at 9.
But the Birges are not out of the woods just yet. The trial court concluded the flooding made it "more difficult" for the Birges to farm the land. The standard, the Indiana Supreme Court concluded, is a bit higher. The owner must show that the flooding resulted in "substantial" damage. Back down it goes to determine if the Birges meet this standard.
Town of Linden v. Birge, No. 22S-PL-352 (Ind. Mar. 7, 2023)
