Thursday, October 4, 2012

The Supreme Court Returns to the Takings Arena

Yesterday, the U.S. Supreme Court heard oral argument in just its second takings case of the past seven years, Arkansas Game & Fish Commission v. U.S., which involves the alleged taking of a flowage easement.  Tomorrow, the Court will discuss a cert petition in the “exaction” takings case of Koontz v. St. Johns River Water Management District, a petition the Court originally slated for its September 24 conference but re-listed for its October 5 conference.  The matters are addressed in turn below.

Arkansas Game & Fish Commission v. U.S.

As discussed in an earlier post here, the first case involves the Arkansas Game & Fish Commission’s allegation that the U.S. Army Corps of Engineers deviated from its original management plan detailing how and when water would be released from the Clearwater Dam on the Black River.  In doing so, the Commission asserts 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 from 1993-1999 than conceived of in the original 1953 water control plan, which, in the process, damaged state-owned bottomland hardwood timber.  Reversing a $5.8 million takings award, 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, and that temporary injuries are more appropriately addressed under tort law.  Interestingly, the Commission, by a 4-3 vote, rejected a $13 million offer from the Obama Administration to settle the matter six weeks prior to oral argument before the U.S. Supreme Court.

Both Ilya Somin on the Volokh Conspiracy and Lawrence Hurley on E&E generally found the Justices sympathetic to the Commission’s position.  However, one certainly could argue that Deputy Solicitor General Edwin Kneedler held his own amidst some admittedly difficult questioning.  Kneedler explained that the federal government was invited to construct the dam and control water flow because of serious natural flooding and the releases done in the case were performed to protect riverfront farmers.  In this sense, given that landowners, of course, are not entitled to takings compensation when their land is naturally flooded, it is difficult to say that they are entitled to compensation for federal acts that are part of a comprehensive plan to control that natural flooding.  The oral argument transcript is available here

Among many other interesting takings issues surrounding this case, a particularly mysterious one involves the lower federal courts' lack of attention to a threshold question in takings suits: is there an interest that should be considered “property” for constitutional takings purposes?  The U.S. Supreme Court at least routinely has purported to follow a positivist approach to defining property in takings cases.  Under such an approach, it presumably must be relevant whether Arkansas statutory or common law provides the Commission with a protected interest in a certain water flow in the first place, though we will have to wait for the Court's decision to see for sure.

Koontz v. St. Johns River Water Management District

As discussed in an earlier post here, the second case involves a permit applicant who sought to dredge and fill wetlands that were part of a designated riparian habitat protection zone. While the Water Management District presumably could have exercised its authority to deny this request, it instead identified several possible exactions that, if accepted by the applicant, could allow for the development to proceed. The applicant, however, refused these proposals, and the government ultimately denied the development request outright.  While the appellate court sided with the applicant on the theory that the government had proposed exactions that amounted to an unconstitutional taking for which compensation is due, the Florida Supreme Court reversed.

Two decades ago, the U.S. declared in Nollan and Dolan that the government—as the defendant— has the burden of proving that a land use exaction bears both an "essential nexus" to and "rough proportionality" with the development’s impacts to avoid takings liability.  Koontz raises two questions on which lower courts thus far have splintered: (1) whether the Nollan/Dolan test applies to exactions beyond those that require public occupation of private lands; and (2) whether the Nollan/Dolan test is applicable at the point in time when an exaction is merely proposed.

Over at SCOTUSBlog, John Elwood reports that, as the dust settles from last week’s September 24 Conference (the first and, by far, the longest conference of the Supreme Court's term), Koontz sits as one of just eleven of the many hundred petitions considered at that Conference that the Court re-listed for tomorrow’s October 5 Conference.  According to Elwood, such a re-listing “is usually a sign that the Court is taking a closer look at the case.”  SCOTUSBlog has not included Koontz on its “Petitions We’re Watching” page, and, of course, the chances of the Supreme Court granting cert in any case are exceedingly small.  Nonetheless, many issues surrounding the U.S. Supreme Court’s exaction takings jurisprudence remain outstanding, and it is at least conceivable that Koontz could serve as a vehicle to provide some sense of clarity to the field.

Stay tuned to the Environmental Law Professors Blog for any developments in these important cases.

-Tim Mulvaney (

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