This past week was the ABA Annual Meeting in Chicago. These things can often be endurance contests where you’re rushing from one meeting to another (is this the Executive Committee meeting or the Council meeting?), and it’s often hard to tell the players without a scorecard.
Sprinkled among these unexciting-but-productive sessions are the real meat of the Annual Meeting, the CLE sessions. Some are interesting and fun (but pretty useless as CLE). Others are timely. Some are just plain weird. But never let it be said that the State and Local Government Law Section (the one that we are active in) doesn’t put on relevant programming: two of the featured CLE’s this past week were of particular interest to our readers, one about eminent domain, and the other about the takings case currently pending before the U.S. Supreme Court (which will be argued on October 3, 2012).
The latter panel — “Hell or High Water” Flooding & Takings Law — focused on the issues in Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012), the case in which the Federal Circuit held that flooding caused by the Corps of Engineers was only temporary, and did not result in a compensable taking merely because it eventually stopped, and “at most created tort liablity.” The panelists included Julie Greathouse (counsel for the Petitioner), law professors John Echeverria and David Dana, and my Owners’ Counsel of America colleague Darius Dynkowski. The panel was moderated by Paul Wilson (who does not have a link, since he will soon be taking the bench as a Superior Court Judge in Massachusetts).
We won’t go over the entire transcript of the hourlong discussion or the spirited questions that followed (the program will be repeated for web and CD listeners later), but we did want to point out a couple of things.
- One of the professors noted that it did not seem right that landowners who had benefitted from flood control projects should be able to complain when the federal government modifies those controls, even if it results in catastrophic damages from the resultant flooding. After all, no one has a right to make the government protect their land with a flood control project, right? Having not possessed such a right, they surely cannot complain when the protections are removed. This strikes us as akin to the “Givings Clause” arguments that have been made in other cases, but here it seems particularly off-base to phrase the argument in that manner, because when the federal government implements flood control projects it is doing so for the betterment of all under the commerce and navigation power, not just to benefit the landowners who may be high and dry as a result. These are projects that are, by definition, for public use, and it seems to us that once built, the fact that a property owner has benefitted from an exercise of the commerce power should not preclude them from asserting a taking when their property is confiscated for the public good. You didn’t build that, after all.
- Another of the professors saw the Arkansas Game and Fish case as one where the federal government was merely choosing between competing evils (i.e., whose lands do we flood), and unfortunately, someone has got to get the short end of the stick. This argument also strikes us as wrong because choosing between harms is one of government’s functions, and indeed, can be viewed as another way of phrasing the Public Use requirement of the Fifth Amendment. As Mr. Dynkowski pointed out, why is choosing between whose lands are flooded any different that choosing on whose land the highway is to be located? In the latter case, there is no question that there is a taking when the government locates a public highway on property, so why should there be a question when the government decides to flood certain property? While there may be other reasons why the Court may not find a taking here, the mere fact that the government is making a choice should not be a dispositive factor.
We will be posting up a complete set of the merits and amicus briefs in the case in advance of the Supreme Court arguments in October. Stay tuned.