Here's the property owner/petitioner's Reply Brief in Arkansas Game & Fish Comm'n v. United States,
No. 11-597 (cert. granted Apr. 2, 2012), the Supreme Court takings case scheduled to be argued on October 3, 2012.
The Federal
Circuit held that flooding caused by the Corps was only
temporary that destroyed G&F's trees did not result in a compensable taking merely because the flooding 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.
The Reply Brief responds to the federal government's brief, and argues:
The Commission seeks to apply the physical takings analysis, not a regulatory analysis like the Penn Central framework, that this Court established in flooding decisions like Pumpelly and Cress and continued to apply in a long line of flooding and nonflooding cases including Dickinson, Causby, and Loretto. See Pet. Br. 21, 26, 27, 36. The physical takings analysis in this Court’s decisions looks to whether the government has taken action, the direct result of which is a physical invasion that substantially intrudes on a protected property interest. See Pet. Br. 26-27, 36. Where such is the character of the invasion, the Takings Clause guarantees just compensation.
...
Nowhere in its brief does the United States acknowledge the destruction its temporary flood control actions can cause. It redirects attention to itself and inflates its concerns with new self-serving testimony from the Corps of Engineers that is not anywhere in the record, while avoiding any direct mention of the damage its flood invasions inflicted on the Commission. It abstracts the undisturbed facts and injects the argument of counsel to defend the Corps’ actions. Using a classic method of defending the indefensible, the United States supplants facts with "euphemism, question-begging and sheer cloudy vagueness" so as "to name things without calling up mental pictures of them." George Orwell, Politics and the English
Language.
Br. at 1-2. As we commented about the SG's brief:
[T]he 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.
We also filed an amicus brief
in the case supporting the property owner/petitioner, which argues that 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 and there's no need to delve into the metaphysical question of whether flooding is intended to be "temporary" or "permanent."
The petitioner's merits brief is here.
The Supreme Court's docket report for the case is here.
Petitioner's Reply Brief on the Merits, Arkansas Game & Fish Comm'n v. United States, No. 11-597 (f...
