Supreme Court wades into flood-control compensation argument

McClatchy NewspapersOctober 3, 2012 

— In a case closely watched by farmers in California’s San Joaquin Valley and beyond, the Supreme Court wrestled Wednesday with tough questions about when the federal government must pay landowners for temporary flooding damages.

How the court answers could help property owners in general and the Los Banos, Calif.-based Wolfsen Land and Cattle Co. in particular. The prominent California business owns land alongside the long-dry San Joaquin River channel, which the government is preparing to fill with water and salmon.

The case arises from Arkansas, and the justices spent an hour Wednesday morning jousting over when river flooding becomes a “taking.” Wolfsen and other farmers filed separate friends-of-the-court briefs in hopes of swaying the outcome. Conservative justices already seem to share the landowners’ belief that they’re owed compensation for even temporary flooding from an Army Corps of Engineers facility.

“So if the government comes in and tells a landowner, ‘Every March and April we’re going to flood your land, so you can’t use it from now on,’ . . . that’s not a taking?” a clearly skeptical Chief Justice John Roberts Jr. pressed the Obama administration’s lawyer.

Justice Antonin Scalia added that the downstream flooding in Arkansas that wiped out many hardwood trees was a “foreseeable and certain” consequence of the federal flood-control actions, and even liberal-leaning justices sounded frustrated with the government’s position that no compensation was due for downstream damages.

“I must be slow today,” Justice Sonia Sotomayor told Deputy Solicitor General Edwin Kneedler, “because I’m having significant problems with your articulation of your test” for when a taking occurs and payment is due.

The case heard Wednesday has national implications, though it arises out of specific set of incidents along the Black River in Arkansas. From 1993 to 2000, the Army Corps of Engineers released so much water from the Clearwater Dam in Missouri that the resulting flooding downstream destroyed or damaged more than 100,000 trees.

When the government takes private property, it owes compensation under the Fifth Amendment. There’s no question that creating a reservoir by flooding land behind a new dam amounts to a taking for which payments are due. In the Arkansas case, though, a lower court reasoned that the downstream Black River inundation was different because it was a temporary, albeit repeating, affair in which the waters eventually receded.

“These were floodwaters . . . that ended up on the land as an incidental consequence of the operation of the flood-control project,” Kneedler said, adding that “riparian ownership carries with it certain risks.”

Attorney James F. Goodhart, representing the Arkansas Game and Fish Commission, which owns the Black River land, responded Wednesday that flood damages in Arkansas weren’t merely “incidental” but rather a “direct, natural and probable result” of federal water releases.

In California, the Wolfsen Land and Cattle Co. likewise owns property alongside a river that’s potentially subject to inundation as a consequence of federal actions, which is why the company – as well as national groups such as the American Farm Bureau Federation – cares about how the court rules. In a legal brief, Wolfsen says the farmers “currently face having their prime agricultural land, buildings and crops repeatedly flooded” because of San Joaquin River restoration efforts.

Under a lawsuit settlement and a 2009 law, state and federal officials are endeavoring to restore water flows and a viable salmon population to the San Joaquin River. In a separate lawsuit that’s still under way, Wolfsen and other farming companies seek compensation for the resulting flooding of nearly 13,000 acres in western Fresno and Merced counties.

A decision is expected by June.

Email:; Twitter: @MichaelDoyle10

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