Wednesday, December 5, 2012

Arkansas Game and Fish Commission v. U.S.

In the U.S. Supreme Court, Case No. 11-597. Appealed from the U.S. Court of Appeals, Federal Circuit, Case No. 2009-5121 & 2010-5029 [See WIMS 3/31/11]. Justice Ginsburg delivered the opinion of the Court, in which all other Members joined, except Justice Kagan, who took no part in the consideration or decision of the case.

    In the opinion, the Supreme Court indicates that periodically from 1993 until 2000, the U. S. Army Corps of Engineers (Corps) authorized flooding that extended into the peak growing season for timber on forest land owned and managed by petitioner, Arkansas Game and Fish Commission (Commission). Cumulative in effect, the repeated flooding damaged or destroyed more than 18 million board feet of timber and disrupted the ordinary use and enjoyment of the Commission's property. The Commission sought compensation from the United States pursuant to the Fifth Amendment's instruction: "[N]or shall private property be taken for public use, without just compensation." The question presented is whether a taking may occur, within the meaning of the Takings Clause, when government-induced flood invasions, although repetitive, are temporary.

    The Supreme Court said, "Ordinarily, this Court's decisions confirm, if government action would qualify as a taking when permanently continued, temporary actions of the same character may also qualify as a taking. In the instant case, the parties and the courts below divided on the appropriate classification of temporary flooding. Reversing the judgment of the Court of Federal Claims, which awarded compensation to the Commission, the Federal Circuit held, 2 to 1, that compensation may be sought only when flooding is 'a permanent or inevitably recurring condition, rather than an inherently temporary situation.' 637 F. 3d 1366, 1378 (2011). We disagree and conclude that recurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability."
    The Supreme Court said further, "We rule today, simply and only, that government induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking."
    Access the complete opinion (click here). Access the Supreme Court docket for this case (click here). Access the oral argument transcript (click here). Access merit and amicus briefs in the case (click here). Access the complete opinion of the Federal Circuit (click here). [#Water, #Land, #SupCt #CAFed]
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