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Supreme Court ruling could get property owners payments when agencies flood their lands

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By McClatchy Newspapers
Tuesday, Dec. 4, 2012, 7:38 p.m.

WASHINGTON — Private property owners might deserve payment when public agencies temporarily flood their land, the Supreme Court ruled on Tuesday in a case closely watched by farmers around the country.

Pleasing property-rights advocates, the court emphatically declared in an 8-0 decision that even temporary flooding can amount to a “taking” for which the Constitution requires compensation. The ruling in a case that arose from Arkansas will reach everywhere that government actions affect waterways.

“Because government-induced flooding can constitute a taking of property and, because a taking need not be permanent to be compensable, government-induced flooding of limited duration may be compensable,” Justice Ruth Bader Ginsburg wrote.

A stalwart of the court's liberal wing, Ginsburg nonetheless led conservatives as well in rejecting the Obama administration's insistence that temporary floods should be exempt from the Fifth Amendment's requirement that private property won't “be taken for public use, without just compensation.”

The 19-page ruling means that the Arkansas Game and Fish Commission might get paid for the Black River flooding damage that resulted when the Army Corps of Engineers released water from the Clearwater Dam in neighboring Missouri. From 1993 to 2000, the flooding wiped out more than 18 million board feet of timber in a wildlife management area about 115 miles from the dam.

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