Here are some initial reports of today's unanimous Supreme Court decision in Arkansas Game and Fish Comm'n v. United States, No. 11-597 (Dec. 4, 2012), which held that government induced flooding could be a taking, even if the inundation of the land is temporary. We filed an amicus brief in the case supporting the property owner/petitioner, which argues that as long as the water releases by the Corps "directly and substantially" resulted in damage to petitioner's property (the G&F Commission is seeking compensation only for the loss of its trees), it's a taking for which just compensation is required.
- Our thoughts here: More Thoughts On Flooding, Takings, And How To Read A Supreme Court Opinion.
- Gideon Kanner: "Anyway, the unanimous 8-0 decision of today comes down basically on the side of common sense and holds that the destruction of the state’s timber by the feds’ “temporary” floodings was a compensable taking. ... In a rational legal world, that decision would have been as hard as falling off a log. But who says the law of eminent domain is rational? Instead of giving us a sensible, workable rule, the court couldn’t resist it and created another morass of the it-all-depends variety? Why? The court didn’t say. And here we thought that physical takings — and flooding land seems to us to be about as physical as it gets — are takings per se."
- Pacific Legal Foundation's Brian Hodges: "By expressly rejecting any distinction between temporary and permanent government intrusions on private property, today’s decision closes a dangerous loophole in takings law that could be exploited to allow the government to avoid its obligation to pay just compensation when it takes private property. Simply put, the Takings Clause does not come with a stopwatch."
- Lawprof Ilya Somin via Volokh: "I suspect that the justices bought unity at the expense of clarity here. In the meantime, it seems clear that Arkansas Game and Fish Commission is going to result in further litigation in the lower courts, as property owners and government agencies advance competing interpretations of the Court’s vague standards for determing whether a temporary flood qualifies as a taking or not."
- Brian Hodges reacts to Professor Somin: "Although some may be tempted to argue that the Court created a chimera from blended regulatory and physical takings tests, the Court did not intend to do so. Instead, the Court stated that its decision was narrow, 'We rule today, simply and only, that government induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.' ... The upshot being that the tests that control physical invasion takings still control physical takings cases, and the tests that control regulatory takings still only apply in regulatory takings cases."
- Florida land-use lawyer Jacob Cremer: "The Court also seems comfortable that its current takings precedents cover most situations, making it disinclined to adopt any new rules."
- Reason's Damon Root: "Bottom line: The federal government went to court in the hopes of restricting property rights and came up short."
- Roger Pilon at Cato: "Thus, the case is not over yet. Because the government had challenged several of the trial court’s fact-findings, including those relating to causation, forseeability, substantiality, and the amount of damages, the Court remanded the case for further proceedings. Still, the basic principle was settled: temporary government-induced flooding enjoys no automatic exemption from Takings Clause inspection. And that’s a win."
Stay tuned, more to follow, including our thoughts on the decision.