SCOTUSblog has listed a case we’ve been following, Arkansas Game & Fish Comm’n v. United States, as its “petition of the day” (cert petitions identified as “raising one or more questions that have a reasonable chance of being granted in an appropriate case”). SCOUTSblog posts the cert petition and the amicus briefs in support here.
In that case, the Federal Circuit in a 2-1 opinion concluded that temporary flooding is not a compensable taking, merely because they were temporary. 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.
We posted the Federal Circuit’s opinion here, and the Supreme Court’s docket report is here.
The Question Presented by the cert petition:
Petitioner Arkansas Game & Fish Commission, a constitutional entity of the State of Arkansas, sought just compensation from the United States under the Takings Clause of the Fifth Amendment for physically taking its bottomland hardwood timber through six consecutive years of protested flooding during the sensitive growing season. The Court of Federal Claims awarded $5.7 million, finding that the Army Corps of Engineers’ actions foreseeably destroyed and degraded more than 18 million board feet of timber, left habitat unable to regenerate, and preempted Petitioner’s use and enjoyment. The Federal Circuit, with its unique jurisdiction over takings claims, reversed the trial judgment on a single point of law. Contrary to this Court’s precedent, a sharply divided 2-1 panel ruled that the United States did not inflict a taking because its actions were not permanent and the flooding eventually stopped. The Federal Circuit denied rehearing en banc in a fractured 7-4 vote. The question presented is:
Whether government actions that impose recurring flood invasions must continue
permanently to take property within the meaning of the Takings Clause.
More to come.