Boling v. U.S.

1 Analyses of this case by attorneys

  1. State Agency’s Intentional Flooding for Environmental Protection Results in Physical Taking of Private Property – Strict Liability Applies

    Sheppard, Mullin, Richter & Hampton LLPJennifer GunschJanuary 26, 2016

    However, the court affirmed plaintiffs’ cause of action against the Department was timely, rejecting the Department’s argument that the lake was allowed to exceed 4 foot levels for many years prior to the applicable three‑year statute of limitations. The court applied the Dickinson stabilization doctrine, as clarified by Boling, noting that stabilization “occurs when the environmental forces have substantially and permanently invaded the private property such that the permanent nature of the taking is evident and the extent of the damage is reasonably foreseeable” (quoting Boling v. United States (Fed.Cir. 2000) 220 F.3d at 1368). Applying the Dickinson stabilization doctrine, the court concluded that plaintiffs’ claims did not accrue until the approval the 2005 Management Plan, which established a long‑term policy of breaching at 8 to 10 feet.C. Physical Taking The Department asserted it could not be liable for inverse condemnation because the Pacific Shores subdivision was historically prone to flooding and by breaching the sandbar at 8 to 10 feet the Department was providing more protection against flooding than if it had done nothing at all.