Is it an unconstitutional taking when an Arkansas dam operator releases water during heavy rain and the release floods downstream land beyond the existing easement?

Plain-English summary

Representative Bob Ballinger asked whether water released from a dam during heavy rain, when the release floods downstream land in excess of the existing easement and causes physical and financial loss, amounts to an "illegal taking" of property. The constitutional backdrop is the Fifth Amendment to the U.S. Constitution and Article 2, § 22 of the Arkansas Constitution, both of which prohibit government takings of property without just compensation.

The AG declined to answer. Two structural limits on the AG's opinion-writing authority drove the refusal:

First, takings claims are fact-intensive. Whether a dam release that exceeds an existing easement constitutes a compensable taking depends on facts the AG could not develop in an opinion: the scope of the easement (was the additional water a real exceedance, or was it within the easement's terms?), the cause of the release (engineering necessity? operator decision? involuntary spillway overtopping?), the foreseeability and frequency of similar releases, the damage to the specific parcels, and how those facts map onto the case-law definitions of permanent versus temporary taking, physical versus regulatory taking, and the federal takings standards. The AG had statutory authority under Ark. Code Ann. § 25-16-706 to opine on questions of state law for state officials, but the AG was not equipped to act as a factfinder when issuing formal opinions.

Second, takings claims involve adverse parties (the affected landowners and the dam operator). Ark. Code Ann. § 25-19-701 prohibits the AG from engaging in the private practice of law. Answering whether a particular dam-release event was a taking would amount to giving legal advice to the landowner about a claim against the dam operator, which the AG cannot do.

The AG suggested the interested parties consult counsel of their choice to investigate the applicable law and facts and decide whether to pursue judicial remedies.

This opinion is short because the AG declined to reach the merits. The point of reading it is that it shows the boundary of AG opinion authority. Fact-bound disputes between private parties (or between a private party and a public body acting in proprietary capacity) generally fall outside what the AG can resolve in a formal opinion.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Ark. Code Ann. § 25-16-706 charges the Attorney General to give opinions to state officials on matters of state law upon request. The AG's opinion authority is broad but bounded. Two boundaries mattered for this opinion.

The first boundary is factfinding. AG opinions interpret law against assumed or stipulated facts; they do not develop facts. When a question's answer turns on disputed or unknown factual matters, the AG typically frames a general legal rule (or several, depending on which facts apply) rather than committing to a specific outcome. For a takings question, the relevant facts include the easement's text, the engineering and operational facts surrounding the release, the physical extent and duration of the flooding, the value of the affected use, and the parties' course of dealing. Those facts are not the kind of thing an opinion can assume away.

The second boundary is the private-practice prohibition. Ark. Code Ann. § 25-19-701 forbids the AG from engaging in private practice of law. The rationale is that the AG represents the state, not private parties, and giving private advice would create conflicts and would let private litigants borrow the AG's prestige in disputes the AG has no statutory role in.

Takings claims are typically litigated as inverse condemnation actions in state court. A landowner who believes the government has taken property without paying for it sues for compensation. The doctrinal framework involves federal takings jurisprudence (Penn Central, Loretto, Lucas, Lingle, Knick) and state takings law under Article 2, § 22 of the Arkansas Constitution. Whether a flood-causing release rises to the level of a taking depends on the type of taking alleged (physical occupation, regulatory taking, exaction) and on the specific facts the landowner can prove.

The opinion is a useful example of an AG decline. The format is straightforward: "I am asked X. I cannot answer X because of statutory limits Y and Z. The questioner should consult counsel."

Common questions

Did the AG say there was no taking?
No. The AG said the question could not be answered in an opinion, because the answer depends on facts the AG cannot develop and because answering would amount to private legal advice.

What is a takings claim?
A claim under the Fifth Amendment to the U.S. Constitution or Article 2, § 22 of the Arkansas Constitution that the government has taken private property without paying just compensation. Takings can be physical (the government occupies or floods the property) or regulatory (the government's regulations destroy the property's economic value).

Could the dam-release scenario be a taking?
The AG did not say either way. Federal and state case law recognize that government-caused flooding can be a taking in some circumstances (Arkansas Game and Fish Commission v. United States, U.S. Supreme Court 2012, was the leading federal authority at the time). Whether any specific release qualifies is fact-intensive.

Why does the easement matter?
An easement is a legal right to use someone else's land for a specified purpose. A dam operator's flood easement typically lets the operator flood the downstream parcel up to a certain elevation. If the easement is broad enough to cover the release, there is no taking; if the release goes beyond the easement, the question is whether the additional flooding is a taking.

Could the General Assembly ask the AG the same question?
The AG receives questions from state officials. A general policy question (does Arkansas need a statute specifying when dam-release flooding is compensable?) might fit. A specific question (was this particular release a taking?) typically would not, because the answer turns on facts the AG cannot find.

Who can a landowner sue if their land floods beyond an easement?
The opinion does not address that question. The dam operator (which might be a state agency, a federal agency like the Army Corps of Engineers, a local district, or a private utility, depending on the dam) would be the typical defendant. The legal theory, takings versus negligence versus contract breach, would depend on the relationship between the operator and the landowner and on the operator's status as government or private.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2015-063
June 24, 2015

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

The Honorable Bob Ballinger
State Representative
1757 Madison 7150
Hindsville, AR 72738-9558

Dear Representative Ballinger:

You have requested my opinion on the following question:

Where water released from a dam during high rain events causes significant flooding to land below the dam in excess of the established easement and which results in a physical and financial loss of use of the land, is this considered an illegal taking?

RESPONSE

I regret that I am unable to provide an opinion on the question posed, which suggests the possibility of a constitutionally-recognized "taking" of property. See U.S. Const. amend. 5 and Ark. Const. art. 2, § 22 (prohibiting a government's "taking" of property without just compensation). I am neither authorized nor equipped to address the fact-intensive question of whether such a taking has occurred. An inquiry of that sort requires a case-by-case determination. As such, it is beyond the scope of an official Attorney General opinion. I am charged by statute with providing opinions to state officials on various matters of state law. See Ark. Code Ann. § 25-16-706 (Repl. 2014). I am not empowered or equipped, however, to act as a factfinder when issuing formal opinions.

In addition, I am prohibited by statute from engaging in the private practice of law. See Ark. Code Ann. § 25-19-701 (Repl. 2014). I therefore cannot offer legal advice to private parties concerning their rights and remedies as parties to a dispute. Interested parties should instead consult legal counsel of their choosing to investigate the applicable law and facts and determine whether to pursue any available judicial remedies.

I regret that I cannot be of assistance in this matter. Please do not hesitate to contact me if I may be of future assistance in some other respect.

Deputy Attorney General Elisabeth A. Walker prepared this opinion, which I hereby approve.

Sincerely,

LESLIE RUTLEDGE
Attorney General
LR/EAW:cyh