Those of you who attended the recent CLE session at the ABA Annual Meeting about Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012) may recall that Professor John Echeverria, the well-known environmental lawprof, said he was writing a brief in the case supporting the government’s arguments, but was looking for a “client.” Well, it looks like he found one: today, the International Municipal Lawyers Association filed this amicus brief in support of the respondent.
In Arkansas Game, 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 dissenting judge concluded that temporary flooding was no different in kind than more permanent flooding that occurs in other inverse condemnation cases, and regularly results in awards of compensation. The Federal Circuit’s opinion is here.
IMLA’s amicus brief argues that physical invasions are not takings unless they can be deemed “permanent or inevitably recurring.” As a fallback argument, the IMLA brief mirrors the SG’s argument that even if the flooding in the case is a taking, it should be analyzed under the Penn Central ad hoc test, and not as a per se taking.
The brief starts out by attempting to dispel the idea that the flooding caused damage to the environment:
This case is a rare but not unprecedented example of one government suing another government under the Takings Clause. But Petitioner’s governmental character is beside the point for the purpose of resolving the issues in the case. Petitioner claims a taking based on alleged incremental inundation of a floodplain and seeks compensation for damage to commercial timber. Thus, the case would be exactly the same if this lawsuit had been brought by, for example, a private timber investment firm.[FN]
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FN Petitioner describes at length the environmental values protected by the Black River Wildlife Management Area, but this claim does not arise from or relate to any injury to those values. Therefore, they are irrelevant to the resolution of this case.
Brief at 3. This seems designed in part to deflect the assertion that the case presents “A Takings Claim Even Environmentalists Could Love.” Looks like they don’t. Is the brief arguing that trees are not part of “environmental values” and indeed a key part? Or does the environment treasure only those trees not privately owned?
As the amicus brief we filed in support of the petitioner/property owner emphasizes, as long as the water releases by the Corps “directly and substantially” resulted in damage to petitioner’s property (recall that the G&F Commission is seeking compensation only for the loss of its trees), it’s a taking for which just compensation is required.
The petitioner’s merits brief is here. The Supreme Court’s docket reportfor the case is here.
Brief of International Municipal Lawyers Association, et al., Arkansas Game & Fish Comm’n v. United…