Is Government Failure to Act a Taking?

Can government inaction – as opposed to affirmative government action – give rise to takings liability?  A recent decision by the Wisconsin Court of Appeals, in Fromm v. Village of Lake Denton, is the latest decision to embrace the general understanding that a government failure to act cannot support a viable claim under the Takings Clause.  

This case arose from a severe flood – a 1000-year flood event, according to plaintiff’s expert – that dramatically raised the lake level behind a dam owned and managed by the Village of Lake Denton, Wisconsin.   The high lake level caused water to flow through a “saddle” in the reservoir rim, leading to serious erosion; plaintiff’s “residence and the land on which it was built . . . were swept down and into the river.”  The Court of Appeals analyzed the claim on the assumption that the Town at some point learned that the lowest elevation point of the dam was higher than the elevation of the plaintiff’s property, meaning that the Town knew that the plaintiff’s land was at serious risk of flooding and erosion.    The plaintiff asserted that the government took “action” for the purpose of establishing takings liability by “decid[ing] not to take steps or by avoiding necessary steps to prevent the flooding event based on its knowledge.”   The Court rejected the claim, reasoning that “the failure to act on this information cannot form the basis for [plaintiff’s] takings claim.”   To support its ruling, the Court cited several precedents, including Nicholson v. United States, 77 Fed.Cl. 605 (Fed.Cl.2007) and Valles v. Pima Cnty., 776 F.Supp.2d 995 (D.Ariz.2011); in the latter case the Court stated, “Plaintiffs have not cited any authority to  suggest that a government’s inaction or omissions can amount to a taking, and this Court is not aware of any such case law.”) (emphasis in original).

This legal issue may take on monumental importance in the future when rising seas due to climate change begin to invade coastal properties, and give rise to inevitable claims that the government is liable under the Takings Clause for not providing adequate protection, such as by building sea walls.   In a provocative new article, Professor Christopher Serkin has argued, thinking specifically of the climate change context, that government inaction should potentially provide a basis for takings liability in some circumstances.  But not, apparently, in the courts, at least so far.