05 Jul 2017
Professor Sandi Zellmer’s article, Takings, Torts, and Background Principles, was published in the Wake Forest Law Review.
Perhaps more than any other type of temporary physical occupation, flood cases raise a slough of critical issues regarding the management of vulnerable floodplain and coastal properties and compensation for government actions that affect those properties. Unpacking these issues requires a deep assessment of the interrelated concepts of torts, takings, and property. The threshold inquiry is whether the claims should be characterized as torts, which warrant dismissal under sovereign immunity in most cases, or a taking. The federal courts have blurred the lines between the two types of claims such that they are almost indistinguishable. Determining which type is being invoked — common law tort or constitutional taking — may be clarified considerably, and the nature of government action may be illuminated, with a test that differentiates between purposeful appropriations for public benefit, undertaken with intent or substantial certainty of the consequence to the claimant’s property, and government actions involving some diffuse risk of impact. Then, if the claims are takings rather than torts, both the nature of the government action and the parameters of the claimant’s property interest will be at issue. The ability to develop vulnerable areas may be prohibited as an inherent restriction under background principles of property law such as public nuisance and public trust. In addition, when landowners have received extensive benefits through government flood control programs that, on balance, provide more benefits than losses, there can be no viable takings claim when the floodwaters exceed the capabilities of those projects. With these clarifications, officials at all institutional levels may be willing to make more proactive decisions to operate their flood control structures to better protect vulnerable areas and human and ecological communities and to mitigate the effects of unsustainable development.