Gunster wishes to alert its clients and friends of the firm with agricultural interests to a potentially significant decision by the United States Supreme Court this month concerning protection available under the Takings Clause of the U.S. Constitution (“nor shall private property be taken for public use, without just compensation”) in instances of temporary flooding.

In its December 4 ruling in Arkansas Game & Fish Commission v. U.S., the court reaffirmed that temporary takings (not just permanent ones) of private property are compensable, and confirmed that this rule applies to periodic, temporary flooding.

The decision reversed a Federal Circuit Court of Appeals opinion that denied compensation to the owner of timberland damaged by several years of seasonal flooding caused by changes in how the U.S. Army Corps of Engineers managed a dam. Because the Army Corps eventually stopped the damaging flow of water onto the plaintiff’s timberland, it argued no compensable taking had occurred.

Notably, a compensable taking was found due to a temporary change in water management policy. Although there was some precedent for this, the high court made this protection more clearly available.

The court suggested that, under federal law, compensability for temporary flooding may depend on the claimant demonstrating the foreseeability of the flooding and substantiality of damage, but that the mere fact that the flooding was not permanent did not bar recovery.

The 8-0 decision was authored by Justice Ruth Bader Ginsburg, with Justice Elena Hagan abstaining. The Pacific Legal Foundation supported the claimant as an amicus.


For more information, read the complete decision of the Supreme Court of the United States in Arkansas Game & Fish Commission v. United States (12/4/12).

This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.

Established in 1925, Gunster is one of Florida’s oldest and largest full-service law firms. The firm’s clients include international, national and local businesses, institutions, local governments and prominent individuals. Gunster maintains its presence in Florida with offices in Fort Lauderdale, Jacksonville, Miami, Palm Beach, Stuart, Tallahassee, Tampa, The Florida Keys, Vero Beach and its headquarters in West Palm Beach. Gunster is home to more than 165 attorneys and 200 committed support staff, providing counsel to clients through 18 practice groups including banking & financial services; business litigation; construction; corporate; environmental & land use; government affairs; health care; immigration; international; labor & employment; leisure & resorts; private wealth services; probate, trust & guardianship litigation; professional malpractice; real estate; securities and corporate governance; tax; and technology & entrepreneurial companies. Gunster is ranked among the National Law Journal’s list of the 250 largest law firms.


Find a Professional

by Name

by Practice/Office