Earlier, we posted the initial briefs in Big Oak Farms, Inc. v. United States, a case now pending in the Court of Federal Claims. Or, more correctly, perhaps being revived in the CFC because it was dismissed earlier.
The property owner in Big Oak Farms is seeking compensation for the flooding of its land in 2011 after the Corps of Engineers blew up a levee on the Mississippi River in order to, in the plaintiff's words, "sacrifice Plaintiffs' land to superimposed water, sand, and gravel in order to benefit the public diverting high water away from other personal and real properties in and around Cairo, Illinois." Video here.
The Big Oak Farms briefs were the first briefs filed in which the parties attempted to apply the Supreme Court's ruling in Arkansas Game and Fish Comm'n v. United States, No. 11-597 (Dec. 4, 2012). These were filed even before the parties in Arkansas Game filed their briefs on the effect of the Supreme Court's decision on their case.
In Arkansas Game, the Supreme Court rejected a per se rule of no liability for government-induced flooding. Following the ruling, the CFC said it would reconsider its dismissal of Big Oak Farms because the dismissal was based on the now-vacated Federal Circuit decision in Arkansas Game. The CFC invited briefing on what the Supreme Court meant when it held that courts must "weigh carefully the relevant factors and circumstances" presented in a flooding case, and apply a Penn Central-esque list of "factors" to determine whether there's been a taking:
- "[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]").
Each side filed their initial briefs and now have filed their answering briefs. Here is the property owner's response brief, and here is the response brief of the federal government.
We'll have more when the CFC issues its ruling.