Here the first briefs filed in which the parties attempt tofigure out what the Supreme Court meant in Arkansas Game and Fish Comm'n v. United States, No. 11-597 (Dec. 4, 2012)
Once the Supreme Court rejected that per se rule of no liability, the Court of Federal Claims in Big Oak Farms, Inc. v. United States said it would reconsider its dismissal of the case (which was based on the now-vacated Federal Circuit decision in Arkansas Game), and asked the parties to brief the effect of the Supreme Court's opinion on the case.
Recall that the Supreme Court's unanimous opinion held that courts must "weigh carefully the relevant factors and circumstances" presented in a flooding case:
- "[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]").