A Hectic Week on the Takings Front

For Takings Clause enthusiasts, the past week has proven a busy one.  Two state court decisions out of Texas and New Jersey, coupled with a grant of certiorari at the U.S. Supreme Court, threaten to constrain governmental decision-making at the complex intersection of land and water.

The Texas Supreme Court issued its long-awaited decision on rehearing in Severance v. Patterson.  While the support of dozens of amici curiae managed to peel one Justice away from the original 6-2 majority, the Court, by a 5-3 vote, adhered to its original holding that state law does not recognize an independent public beachfront easement that “rolls” landward as avulsive events shape and re-shape the state’s shoreline.  Meanwhile, a New Jersey appellate panel issued its opinion in Borough of Harvey Cedars v. Karan.  The court affirmed a trial court ruling that a sand dune constructed on condemned property in conjunction with a public beach replenishment project did not confer a special benefit on the oceanfront landowner; therefore, the court upheld a jury verdict of $375,000 in takings compensation given that the dune reduced the landowner’s view of the water. 

These decisions may bring beach replenishment projects to a halt in Texas and New Jersey.  Texas Land Commissioner Jerry Patterson already has announced that the state is abandoning a plan to spend state taxpayer money on rebuilding what are now considered private beaches along Galveston Island’s West End.  While New Jersey has engaged in beach replenishment for decades by acquiring voluntary easements from private beachfront landowners who overwhelmingly welcomed shore protection, the decision in Karan provides oceanfront landowners with an incentive to hold out for what could be viewed as a dual windfall: shore protection and takings compensation.  Some may welcome the demise of beach renourishment in light of the environmental degradation that can result from mechanized manipulation of the ocean floor and upland coastal areas; however, that likely is only the case if a more ecologically sensible approach that would allow for the natural inland migration of the sea takes its place as a response to the effects of coastal storms and sea-level rise.

As if these two state courts opinions were not enough for takings scholars to chew on this week, the U.S. Supreme Court agreed to review the matter of Arkansas Game & Fish Commission v. U.S. in its next term.  The alleged taking occurred in the course of the U.S. Army Corps of Engineers’ management of the Clearwater Dam on Arkansas’s Black River.  Arkansas’s Fish & Game Commission alleges that the Army Corps deviated from its original management plan detailing how and when water would be released from the dam.  In doing so, the Commission and its amici (including the Pacific Legal Foundation and the Cato Institute) assert that the Army Corps unconstitutionally “took” a property interest—a flowage easement—by temporarily flooding part of the Commission’s wildlife and hunting reserve for more days per year than conceived of in the original plan, which, in the process, damaged state-owned bottomland hardwood timber. 

Reversing a $5.8 million takings award issued by the Court of Federal Claims, a 2-1 panel of the U.S. Court of Appeals for the Federal Circuit held that U.S. Supreme Court precedent asserts that only an “actual, permanent invasion of land” rises to the level of a taking.   The Court of Appeals concluded that temporary injuries are more appropriately addressed under tort law, not takings, precepts.  The U.S. Supreme Court’s review of Arkansas Game & Fish Commission conceivably could touch on a host of takings issues, including the distinction between government torts and government takings, the reach of the categorical rule applicable to physical invasions set forth in Loretto, the uncertainties surrounding the “temporary” regulatory takings doctrine introduced in First English and refined in Tahoe-Sierra, and the question of whether the government’s intent—here, whether the government intended the water release to be a continually recurring event or a temporary measure—is relevant to determining whether a taking has occurred.  It is not altogether common to see a state petitioner challenging federal action as an unconstitutional taking in this type of situation.  With the possibility of the Court expanding takings liability for all levels of government, one might say that Arkansas and the three states that supported its cert petition—Louisiana, Mississippi, and South Dakota—should be careful what they wish for.

Stay tuned to the Environmental Law Professor’s Blog for updates and analysis on these important takings cases.

-Tim Mulvaney