A ruling on flood payments

WASHINGTON - Property owners may seek compensation if the government is responsible for flooding their lands, even if the condition is not permanent, the Supreme Court ruled unanimously Tuesday.

The court ruled in favor of the Arkansas Game and Fish Commission, which complained that the federal government's annual release of water from a dam 115 miles upstream periodically flooded 23,000 acres of its property from 1993 to 2000.

The U.S. Court of Appeals for the Federal Circuit ruled that, because the flooding receded each year and was not permanent, the commission could not seek compensation under the U.S. Constitution's Takings Clause. The Fifth Amendment prohibits the government's taking of private property "without just compensation."

Justice Ruth Bader Ginsburg wrote for her fellow justices that the appeals court had misinterpreted Supreme Court precedent when it said that compensation may be sought in instances of flooding only when it is a "permanent or inevitably recurring condition, rather than an inherently temporary situation."

Ginsburg said the justices have agreed before that a taking occurs when the government causes flooding. And she said the court has also settled that government acquisition or invasion of property need not be permanent in order to qualify as a taking.

The Army Corps of Engineers controls the Clearwater Dam in Missouri along the Black River. In the years at issue, the corps agreed to requests by farmers that it delay periodic releases of water so they could extend harvesting season.

But the pent-up water, when released, flooded the Dave Donaldson Black River Wildlife Management Area.