Here's the federal government's merits brief 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 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.
As you might expect, the brief phrases the Question Presented somewhat differently than the property owner/petitioner's brief:
The Court of Federal Claims found that during several years in the 1990s, temporary and irregular changes in water releases from a flood-control dam operated by the United States Army Corps of Engineers marginally increased the number of days on which part of petitioner's wetland property -- which is located 115 miles downstream of the dam and has long been subject to regular natural flooding -- was inundated. The question presented is as follows:Whether the Corps' releases of water effected a Fifth Amendment taking of petitioner's property.
A note to appellate advocates: see how the Question Presented is carefully phrased to dull the impact of the facts, and subtly alter the record from the case as determned by the trial court. Instead of addressing flooding that destroyed petitioner's trees, the SG's brief characterizes the government actions as "water releases from a flood-control dam" (emphasizing the public nature of the flooding). Flooding becomes a "marginal increase" in "inundation." It's not petitioner's trees that were taken by being destroyed and rendered valueless, it was "wetland property" (which as we know is worthless). The property was already "subject to regular natural flooding" (so what is the petitioner complaining about, just more water?). The water releases were hundreds of miles away from the damage.
All of which, of course, adds up to squat. As the amicus brief we filed in the case 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 Corps brief argues that "temporary" flooding is not a taking, and that even if it is a taking, its analyzed under the Penn Central ad hoc test, and not as a per se taking.
The Supreme Court's docket reportfor the case is here.
Brief for the Respondent, Arkansas Game & Fish Comm'n v. United States, No. 11-597 (Aug. 27, 2012)
