Thursday, March 31, 2011

Arkansas Game & Fish Commission v. U.S.

Mar 30: In the U.S. Court of Appeals, Federal Circuit, Case No. 2009-5121 & 2010-5029. Appeals from the United States Court of Federal Claims. The Appeals Court explains that the Arkansas Game and Fish Commission (the Commission) filed a physical takings claim against the United States in the Court of Federal Claims (Claims Court), alleging that the United States had taken its property without just compensation. The Commission claimed that temporary deviations by the Army Corps of Engineers (the Corps) from an operating plan for Clear-water Dam during the years 1993 to 2000 caused in-creased flooding in the Commission's Dave Donaldson Black River Wildlife Management Area (Management Area). The flooding, in turn, caused excessive timber mortality in the Management Area. The Claims Court concluded that the United States had taken a temporary flowage easement over the Commission's property and awarded a total of $5,778,757.90 in damages. Ark. Game & Fish Comm'n v. United States, 87 Fed. Cl. 594, 617, 647 (2009).
    The Appeals Court, however, in a split decision, concluded that the Corps' deviations did not constitute a taking, and reversed the decision of the claims court. The majority ruled, "Because the deviations from the 1953 plan were only temporary, they cannot constitute a taking. The actions at most created tort liability. We recognize that in other contexts the distinction between a temporary and permanent release plan may be difficult to define. The government cannot, of course, avoid takings liability by characterizing inevitably recurring events as merely a series of temporary decisions. Here, however, the Corps' regulatory scheme has itself clearly distinguished between permanent and temporary release rates. The deviations in question were plainly temporary and the Corps eventually reverted to the permanent plan. Under such circumstances, the releases cannot be characterized as inevitably recurring."
    The dissent Judge concluded, "The findings of the Court of Federal Claims are not disputed by my colleagues as to the nature, cause, and amount of the damage to the Arkansas property. The determination that a compensable taking occurred is fully in conformity with precedent. My colleagues' ruling contradicts the entire body of precedent relating to the application of the Fifth Amendment to government-induced flooding. I respectfully dissent."
    Access the complete opinion (click here).

No comments: