Louisiana Town Suing Federal Government for Flood Damage

Published October 7, 2016

A 2012 U.S. Supreme Court case involving a flooded Arkansas wildlife refuge could help Walker, Louisiana, a town near Baton Rouge, gain compensation from the federal government for constructing a highway barrier that contributed significantly to the massive flooding.

Catastrophic floodwaters submerged much of Walker, which has a population of about 6,000, and other towns and parishes near Louisiana’s capital in early August 2016.

Rick Ramsey, the mayor of Walker, says he plans to file suit against the federal government because recent flooding in his city was caused in part by a highway divider that was erected by the federal government on Interstate 12. The divider acted as a dam during heavy rains, blocking the natural flow of storm water and causing significant flood damage.

“There is no doubt this is a dam, and that dam raised 5–6 feet of water in our area,” Ramsey told KLFY News in Lafayette, Louisiana.

In the U.S. Supreme Court case Arkansas Game and Fish Commission v. United States, the justices ruled unanimously a one-time flood could be considered a “temporary taking” of property, which could help Ramsey’s case.

In the Court’s decision, written by Associate Justice Ruth Bader Ginsburg, the court determined flooding induced by federal government actions, even if it is temporary in duration, is not automatically exempt from liability under the U.S. Constitution’s Takings Clause.

In the case, the Arkansas Game and Fish Commission sued the federal government alleging federal flood control practices along the Black River had damaged valuable timber on state-owned lands.

Federal Liabilities

The federal government and its employees can be sued under the Federal Tort Claims Act, which holds them liable to the degree an individual could be held liable, says William Perry Pendley, president of the Mountain States Legal Foundation.

“An injured party has to file an administrative claim under the Federal Tort Claims Act because you can’t sue the government unless the government gives you permission,” said Pendley. “The injured party would file an administrative claim saying the government took an action that resulted in their property being flooded, and this is what it costs.

“The government has six months to respond, and if it does not respond in time or it rejects the claim, then [the party] can go into federal court and seek damages,” Pendley said.

‘Worst Possible Neighbor’

“In my view, the federal government is absolutely the worst landlord, it’s the worst land manager, and it’s the worst possible neighbor,” said Pendley. “You could not have a worse neighbor than the federal government because it does whatever wants, whenever it wants, however it wants, and then when bad things happen, it denies responsibility.

“[The Mountain States Legal Foundation] had a case recently in Arkansas in which over a period of years the U.S. Forest Service treated our client’s private property as if it belonged to the Forest Service,” Pendley said. “They moved onto our client’s land, put in a water well, a road, and dumped garbage on our client’s property.

“Our client kept saying, ‘This is my land, you can’t be here,’ but the Forest Service kept saying, basically, ‘Go away,'” said Pendley. “We finally sued, filed a claim, and got them to respond.

“The government continued to deny any responsibility until the week of the trial,” said Pendley. “Then they came to our client and said, ‘How much do you need to make this go away?’ and wrote us a check. This is typically the way the federal government does business; it denies and denies and denies, and then when it looks like it’s going to go in front of a jury, it will write a check.”

Testing the Limits of the Law

“In the past, the mayor’s lawsuit would be pretty implausible, but now it’s actually more plausible,” John Echeverria, a professor at Vermont Law School, told to the environment news publication Greenwire. “This is an extrapolation of the Arkansas Game and Fish litigation, and it may be a test of how far that precedent can be taken.”

Kenneth Artz ([email protected]) writes from Dallas, Texas.