Here’s the transcript of Wednesday’s argument in Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012).
BLUF (Bottom Line Up Front): we’re predicting the property owner win with a minimum six-Justice majority (perhaps more), with a narrowly drawn opinion vacating the Federal Circuit’s conclusion that temporary flooding can never be a taking. Whether the Court adopts a new test to determine whether a taking occured when the government purposefully floods land, however, is up in the air.
The petitioner was represented by James Goodheart, who led off the argument by attacking the Federal Circuit’s conclusion, arguing for a rule that a taking occurs whenever a “direct physical invasion” results in a “substantial intrusion” on a property interest, and that the duration of the invasion is not relevant. That’s a restatement of the existing per se rule that any physical invasion that impacts a property right is a taking, and the same test we urged the Court to reaffirm in our amicus brief supporting the property owner (“This brief makes a single point: the Federal Circuit’s per se rule of nonliability has it exactly backwards, and this Court should reaffirm the rule that all ‘direct and substantial’ physical occupations, even if temporary, are takings. In those cases, the duration of the invasion is a factor in the calculation of just compensation, not whether a taking has occurred.”). This our old friend from Loretto, Kaiser Aetna, and other similar cases.
Mr. Goodheart didn’t get beyond 20 seconds when Justice Ginsburg asked him whether cases like Sanguinetti v. United States, 264 U.S. 146 (1924) imposed a “permanent” invasion requirement, and whether the Court would need to overrule such cases in order for him to win. Goodheart responded first t that no, the Court would not need to overrule Sanguinetti and that the “permanent” language was dicta, and “[t]he Court there did make an inaccurate summary of early flood-taking cases — Pumpelly, Lynah, and Kress.” [Barista’s oral argument note: it’s never much fun telling the Court it screwed up, but it does make it much easier when the case you are criticizing is 88 years old, “nearly a century” in appellate lawyer-speak.”] While the facts in those cases did involve permanent flooding, the result was not based on the permanence of the flooding, but rather the damage.
Justice Scalia answered Justice Ginsburg’s question by posing a softball question to Mr. Goodheart, asking whether the “permanent” part of Sanguinetti was dicta, and if it was not, whether it had been overruled sub silentio in “our later taking cases” (i.e., First English). Goodheart was in the process of agreeing heartily with Justice Scalia, arguing that “all of the cases after Sanguinetti … have held that yes, you can have a temporary –” when Justice Breyer interrupted to ask with one of those questions that appellate advocates either love, or dread: “Which ones? Because I counted eleven cases which either say, state, some seem to hold or support the proposition that when it’s temporary with a flood it’s a trespass, and where it’s permanent it’s a taking … I mean, I have eleven. And so I’ve got from my law clerk. And then I tried to see, well, what are the ones that say the opposite? And so far we’ve come up with zero. All right?”
Advocates love such questions when they have anticipated them and are prepared to give a wonky answer, rife with details and distinguishing points. Advocates who didn’t anticipate the question suddenly find themselves squirming uncomfortably, enduring the longest half-hour of their lives. Fortunately, Mr. Goodheart was in the former category and leapt at the opportunity to go wonky, and started ticking off cases where the Court found a taking but the flooding or the invasion wasn’t permanent. Justice Breyer, apparentlywith quill pen in hand, was taking notes: “Dickinson — I got written down Dickinson … Kimball Laundry. Kimball Laundry was the laundry facilities.”
Justice Breyer was in the process of suggesting that these cases might be different because “[t]he problem with a flood is you don’t take all the land,” when Justice Scalia again interjected to point out that flying over land and shooting over land (the invasions in two of the mentioned cases) did not involve “permanent” acts. The two Justices then began using their questions to Mr. Goodheart as a proxy for arguing with each other, with Justice Breyer trying to distinguish cases like Causby, and Justice Scalia arguing that even without the destruction of the trees in the case at hand, that the flooding of the land itself might be a taking because “You couldn’t plant anything on it. You couldn’t picnic on it. You couldn’t do anything.” [Barista’s note: don’t you just love oral argument? Earlier this week, the Court debated the fine points of whether the Titanic debris that Jack and Rose floated away on was a “vessel,” and here the argument was about whether having a plein air meal is a property right; what is it about takings cases and outdoor meals, anyway?]
Mr. Goodheart, perhaps because he’s a government lawyer (recall that here, the State of Arkansas is the plaintiff/property owner), initially couldn’t wholeheartedly agree with Justice Scalia’s point that any deprivation of use is a taking:
Your Honor, no. If — there would not have been a taking unless the landowner could show substantial intrusion upon his protected property rights.
After Justice Scalia pressed and asked whether picnicing doesn’t interfere with isn’t “substantial” (“So it would be a taking. Are you saying yes or no? What is it?”), Mr. Goodheart came around and finally agreed, that “substantial” means something that interferes with a landowner’s use and enjoyment of property is a taking.
Justice Ginsburg cut in: “So that would cover a one-time flood?” To which Mr. Goodheart gave a more equivocal answer than we would have: “Not necessarily.” He qualified that by clarifying that it might, depending on the nature of the damage, but that it would “depend on the facts, Your Honor, in the case.” Justice Ginsburg responded with apparent puzzlement and appeared to lay a logical trap, arguing that a one-time flood wouldn’t prevent the landowner from having picnics on the land, so how could it be a taking? Of course, the “picnic” argument is not that there would only be a taking if the landowner was prevented from such activity forever, and Justice Scalia’s hypothetical only suggested that even a one-time deprivation of the right to picic might be substantial enough to be a taking.
Mr. Goodheart rightly resisted going down that rabbit hole, and retreated to the “it depends on the facts of the case at hand” response: “But one flood could effectively destroy timber if it is a lake; if it sits there. We didn’t have that in our case.” Crisis averted, time to move on.
Justice Sotomayor then asked the metaphysical question of what does “temporary” mean, suggesting that it encompasses many “different concepts,” including intenty and foreseeability. Her long winded question is one that most oral advocates don’t relish answering, but inevitably have to. You know, the long statement followed by “[i]s that correct?” Mr. Goodheart
of Oral Arguments, Arkansas Game & Fish Comm’n v. United States, No. 11-597 (Oct. 3, 2012)