Thursday, December 6, 2012

Supreme Court Decides Arkansas Game and Fish Commission

On Tuesday, the Supreme Court released its opinion in Arkansas Game and Fish Commission v. United States. The case centered on a claim made by the Arkansas Game and Fish Commission that the federal government’s temporary flooding of its property constituted a taking requiring compensation under the Fifth Amendment. The flooding had caused almost $6 million damage to the forests owned by the Commission.

Here are the key paragraphs:

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... of a compensable taking....

Also relevant to the takings inquiry is the degree to which the invasion is intended or is the foreseeable result of authorized government action.... So, too, are the character of the land at issue and the owner’s “reasonable investment-backed expectations” regarding the land’s use.... Severity of the interference figures in the calculus as well.

Here's some roundup on the decision:

SCOTUSblog: What did appear to be somewhat novel about the opinion was the mini-lecture that Justice Ginsburg offered to what her opinion . . . . “To reject a categorical bar to temporary-flooding takings claims,” Ginsburg wrote, “is scarcely to credit all, or even many, such claims.”  After a prior ruling in a temporary occupation case, she added, “the sky did not fall…and today’s modest decision augurs no deluge of takings liability.”

Volokh: [T]he Court’s decision is clearly correct. [...] Unfortunately, the Court gives very little guidance on how to determine whether a given case of flooding is a taking or not. The opinion lists several factors that might be relevant, but does not explain how many need to be present before a taking can be said to have occurred, or what to do if some factors cut one way and some the other.

Constitutional Law Prof Blog: The ruling is not particularly surprising and only reversed and remanded a lower court decision that read precedent to give temporary floods a pass under the Takings Clause.

New York Times


Steve Clowney

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