Photo by Kelly Sikkema on Unsplash
J.P. Burleigh, Blog Editor, University of Cincinnati Law Review
I. Introduction
The Fifth Amendment guarantees that the government can only take private property for public use if the government justly compensates the property owner.[1] Courts use a variety of tests to decide if government action affects property so much as to be a “taking” requiring compensation to the owner.[2] The Supreme Court has recognized government-caused floods of private property as takings in certain circumstances.[3] But under a little-used theory called the relative benefits doctrine, the government can flood private property and avoid paying compensation if the flood is part of a program that provides more benefit than harm to the property.[4] This article explores the doctrine’s origins and a recent case showing the doctrine’s limits.
II. Background
The relative benefits doctrine emerged out of the Supreme Court’s 1939 decision in U.S. v. Sponenbarger.[5] In Sponenbarger, a woman alleged that the Mississippi Flood Control Act of 1928 was a taking of her property.[6] The Act aimed to limit seasonal flooding on the Mississippi River by building levees along the river.[7] Special diversion channels on the levees allowed flooding into certain areas.[8] Because the plaintiff’s property was within one of these floodways, she argued the government was causing floods on her property.[9]
In an opinion by Justice Black, the Court held that the government did not cause floods on the plaintiff’s property, because her land had always been subject to the “immemorial danger of unpredictable major floods.”[10] The Court found that the program “measured in its entirety greatly reduce[d] the general flood hazards [and was] highly beneficial” to her land.[11] Any increased risk or severity of flooding was minor compared to the benefit the plaintiff received from the Act, so the government owed her no compensation.[12] The opinion continued, providing language laying the groundwork for the relative benefits doctrine:
“The constitutional prohibition against uncompensated taking of private property for public use is grounded upon a conception of the injustice in favoring the public as against an individual property owner. But if governmental activities inflict slight damage upon land in one respect and actually confer great benefits when measured in the whole, to compensate the landowner further would be to grant him a special bounty. Such activities in substance take nothing from the landowner. While this Court has found a taking when the Government directly subjected land to permanent intermittent floods to an owner’s damage, it has never held that the Government takes an owner’s land by a flood program that does little injury in comparison with far greater benefits conferred.”[13]
Courts have applied Sponenberger’s reasoning to develop what is now called the relative benefits doctrine. Simply put, flood control programs do not constitute takings if, all things considered, the program benefits the property in question.[14] In analyzing whether a flood program benefits property, courts compare the program’s overall benefits and detriments to the property, including what would have happened if the government never acted at all.[15] Courts have used this doctrine to deny takings claims arising from dam and levee operation.[16] For example, in Hartwig v. U.S., plaintiffs argued that dams on the North Platte River caused flooding on their properties, but a court barred these claims because the dams actually decreased the risk of flooding and provided the added benefit of irrigation.[17]
In takings claims based on flooding of property, the relative benefits doctrine acts as a defense for the government to avoid paying compensation if the government can show the flood was part of a program that benefitted the property.[18] The judge-made policy behind the doctrine is based on the belief that property is not taken if that property ends up better off. But one recent case demonstrates the limits of this reasoning.
III. Alford v. United States
In 2010, the United States Army Corps of Engineers discovered a problem: a levee between the Mississippi River and Eagle Lake was failing because of pressure from the river.[19] If left alone, the levee would breach with over 95% certainty and waters from the Mississippi River would flood about a million acres of land, including thousands of homes and businesses.[20] The Corps studied what to do for over a year and ultimately decided to intentionally flood Eagle Lake. The Corps raised Eagle Lake’s water level about fifteen feet higher than normal, counteracting the pressure on the levee.[21] The Corps maintained this heightened water level for three months, then reduced the lake to its normal water level and spent $2.7 million to permanently reinforce the levee.[22] This plan successfully avoided a levee breach but wrecked many of the piers, boathouses, and docks on the lake, causing thousands of dollars of property damage.[23]
Although the Corps gave claim forms to the affected property owners, the federal government denied compensation for the destroyed property.[24] The affected property owners argued the government had taken property without compensation in violation of the Fifth Amendment, and sued in the Court of Federal Claims, which awarded $168,000 plus interest for the collective damage.[25] But the Federal Circuit reversed, applying the relative benefits doctrine.[26] The court explained that “the properties would have been far worse off and suffered more serious damage if the government had not acted.”[27] In the eyes of the appellate court, the benefit of avoiding a massive flood from a levee breach outweighed any injury the property owners suffered.[28]
IV. Analysis
The Federal Circuit’s decision in Alford demonstrates a weakness of the relative benefits doctrine. In Sponenbarger, the government’s levee system minimized the number ofnatural floods on the plaintiff’s property; in that context, the few seasonal floods that still affected her property were not government-caused takings. But in Alford the only flood at issue was not natural at all; it was a man-made flood, resulting from a deliberate government decision. The Corps studied the endangered levee for over a year and knew that flooding Eagle Lake was less expensive than strengthening the levee. After weighing costs, the Corps chose to flood the plaintiff’s property, knowing that such a flood would cause property damage.
Fairness requires that the government compensate the property owners for the property losses they suffered at the hands of the Corps. Consider an example. What if one woman owned a 100-acre plot of land in a valley which had a thousand people, and the Corps erected a dam on 20 acres of her land? Even if she is safer from a flood, the government has obviously taken some of her property. She deserves compensation for bearing a disproportionate burden to keep the other residents of the valley safe. The plaintiffs in Alford suffered a similar fate: the Corps prevented a flood by reinforcing the levee with water and destroyed the plaintiffs’ property to do so.[29] Even if the plaintiffs avoided the hypothetically likely massive flood from the levee breaching, they still suffered from the real flood created to save everyone else.
The relative benefits doctrine should be phased out to allow property owners like those in Alford to be compensated for their losses. This does not mean that the government will be liable for a taking every time a dam or levee fails to prevent a flood; careful analysis of causation can supply the right answer. For instance, Sponenbarger’s language about “slight damage” and “great benefits” is unnecessary to its main holding: the government did not cause the Mississippi River to flood.[30] But failing to prevent a natural harm is different than creating a man-made one, and when the government intentionally harms property, the Fifth Amendment’s Takings Clause should come into play.
V. Conclusion
The relative benefits doctrine allows the government to avoid paying compensation for intentionally flooding property if the government can show the flood is part of a program that benefits the property overall. This doctrine sprang out of a case about a natural flood, but the Federal Circuit has applied it in Alford to protect the government even when it creates a man-made flood. The doctrine has outgrown its usefulness, and future courts should decline to use it. Careful attention to issues of causation will ensure that property owners do not receive windfalls and allow courts to better enforce the Fifth Amendment’s guarantee—private property shall not be taken for public use without just compensation.
[1] U.S. Const. amend. V.
[2] See generally Loretto v. Teleprompter, 458 U.S. 419 (1982) (permanent physical invasion); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (denial of all economically beneficial use); Dolan v. City of Tigard, 512 U.S. 374 (1994) (exactions); Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) (regulatory takings).
[3] Arkansas Fish & Game Commission v. U.S., 568 U.S. 23, 32 (2012) citing Pumpelly v. Green Bay Co., 13 Wall. 166, 181 (1872).
[4] Herriman v. U.S., 8 Cl.Ct. 411, 418-19 (Ct. Cl. 1985).
[5] 308 U.S. 256 (1939).
[6] Id. at 260.
[7] Id. at 261.
[8] Id. at 261-62.
[9] Id. at 262.
[10] Sponenbarger, 308 U.S. at 265.
[11] Id. at 266.
[12] Id.
[13] Id. at 266-67.
[14] Alford v. U.S., 2020 WL 3393533, *2-*3 (Fed. Cir. 2020).
[15] Id. at *4.
[16] Hartwig v. U.S., 485 F.2d 615, 621 (Ct. Cl. 1973) (operation of dams on North Platte River was not a taking); Herriman v. U.S., 8 Cl.Ct 411, 422 (Cl. Ct. 1985) (operation of Eufaula Dam was not a taking); Laughlin v. U.S., 22 Cl.Ct. 85, 114 (Cl. Ct. 1990) (operation of Hoover Dam and surrounding dams was not a taking); Big Oak Farms, Inc. v. U.S., 105 Fed.Cl. 48, 57 (operation of a levee on the Mississippi River was not a taking).
[17] Hartwig, 485 F.2d at 616-17.
[18] Alford, 2020 WL 3393533 at *3.
[19] Alford v. U.S., 141 Fed.Cl. 421, 424 (Fed. Cl. 2019).
[20] Id. at 424-25.
[21] Id. at 424.
[22] Id. at 425.
[23] Id. at 424.
[24] Alford, 141 Fed.Cl. at 425.
[25] Id. at 427.
[26] Alford, 2020 WL 3393533 at *4.
[27] Id.
[28] Id.
[29] Id. at *1.
[30] Sponenbarger, 308 U.S. at 265-66.
