Here's the Federal Circuit's Order for additional briefing in the Arkansas Game & Fish Comm'n v. United States case. As you know, the U.S. Supreme Court earlier reversed the Federal Circuit's conclusion that government-induced flooding could not be a taking because it was not "permanent, " and remanded the case to the Federal Circuit for more.
Now that the Supreme Court has rejected that per se rule of no liability, the Federal Circuit must "weigh carefully the relevant factors and circumstances" in the case (to quote the Supreme Court describing the task) and determine whether the flood damage that occurred was a taking under the new, multi-factor test set out in the Court's opinion:
- "[T]ime is indeed a factor in determining the existence vel non of a compensable taking"
- Was the flooding "temporary and unplanned" and a result of "exigent circumstances?"
- "[T]he degree to which the invasion is intended or is the foreseeable result of authorized government action."
- The character of the land at issue and the owner’s 'reasonable investment-backed expectations' regarding the land’s use - had the area been flooded before, and if so, was the flooding comparable to the government-caused flooding?
- The "severity of the interference," and whether the flooding was a single act, or part of a series (a "sufficient number and for a sufficient time may prove [a taking]").
Although it seems to us that the Court of Federal Claims' decision addressed most or all of these factors, maybe the Federal Circuit would prefer to avoid trying to apply them if this final passage in the Order is any indication: "The parties are invited to consider mediation of the issues remaining in the case following the Supreme Court’s remand."