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Court strikes a blow for property rights

Dec. 4, 2012 at 10:55 AM

WASHINGTON, Dec. 4 (UPI) -- The U.S. Supreme Court boosted property rights Tuesday, ruling unanimously government is not automatically exempt from liability when it causes flooding.

In an Arkansas case, the justices said there is no automatic exemption from the Constitution's takings clause in the Fifth Amendment -- which says government usually must reimburse private citizens when it "takes" property for public use -- when government causes temporary flooding.

The Arkansas Game and Fish Commission owns and manages the Dave Donaldson Black River Wildlife Management Area, 23,000 acres along the Black River that are forested with multiple hardwood oak species and that provide a venue for recreation and hunting.

In 1948, the U.S. Army Corps of Engineers constructed the Clearwater Dam upstream from the management area, and adopted a plan known as the Water Control Manual.

The manual sets seasonally varying rates for the release of water from the dam. From 1993 to 2000 at the request of farmers, the corps periodically authorized plan deviations that extended flooding into the management area's peak timber growing season.

The commission objected, and the corps stopped its temporary deviations.

However, the state commission then sued the United States, alleging the temporary deviations constituted a taking of property that entitled it to compensation. A federal appeals court ruled for the United States.

But Tuesday's ruling reverses the appeals court and sends the case back down for new hearings in line with the Supreme Court's opinion.

Justice Ruth Bader Ginsburg, writing for the unanimous high court, cited precedents and said the Supreme Court finds "no solid grounding in precedent for setting flooding apart from other government intrusions on property."

Justice Elena Kagan, who was U.S. solicitor general during the course of the case in the lower courts, did not participate.

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