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 Goodhart, 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. Goodhart 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. Goodhart responded first 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.] Mr. Goodhart noted that 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). Goodhart 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 inwardly smile and 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. Goodhart 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, apparently with 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. Goodhart 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 "[y]ou 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. Goodhart, 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 isn't "substantial" ("So it would be a taking. Are you saying yes or no? What is it?"), Mr. Goodhart 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. Goodhart gave a more equivocal answer than we would have: "Not necessarily." He elaborated 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 had only suggested that even a one-time deprivation of the right to picnic might be substantial enough to be a taking. Mr. Goodhart rightly resisted going down Justice Ginsburg's suggested path, 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."
With the crisis averted, it was time to move on. Justice Sotomayor asked the metaphysical question of what does "temporary" mean, suggesting that it encompasses many "different concepts," including intenty and foreseeability. Her question is of the type that oral advocates don't relish answering, but inevitably are confronted with. You know, the long-winded statement followed by "[i]s that correct?" The answer to these type of questions require some finesse so that you don't inadvertently agree with something you disagree with buried in the question, and Mr. Goodhart handled it well by responding, "[y]es, Your Honor, you're correct," quickly elaborating that the lower court here concluded that the flooding was both intentional and foreseeable, tying his response back to the cases raised by Justice Breyer.
Justice Sotomayor then presented the federal government's argument that flooding is inevitable, and the its role is to decide who gets harmed by the flooding and who doesn't:
Assuming it's going to occur in part because flooding is always going to occur, the question is perhaps when. But in any place you have a dam, it's there because flooding was happening.
In other words, because the harm was going to occur anyway, the government can't be liable for a taking when it decides who is going to get harmed. Justice Sotomayor asked why the Federal Circuit's "no takings" rule isn't the more workable rule because it takes that into account. Mr. Goodhart was in the middle of attempting to answer her question when the Chief Justice and Justice Kennedy interrupted, asking what the "baseline of expectations" that the government can't impact, even if it is protecting the greater good (also known as the Armstrong principle, that takings boil down to a question of whether the burdens of public life "should in all fairness and justice" be placed on a single property owner, or whether they should be borne by everyone).
When Mr. Goodhart didn't quite get the reference, Justice Kennedy made it plainer: "[w]ell, what you're saying is that it can't make the change without paying, right?" After securing an affirmative answer, Justice Kennedy continued to try and understand the contours of the argument against the government's "inevitable flooding" assertion. When Mr. Goodhart would only say that not all flooding is a taking and that there is no "bright line," Justice Alito jumped in to bring him back to the "baseline," asking whether the question should be what would have happened if the dam had never been built.
His answer that "[p]erhaps, Your Honor" it would not always be a taking if the dam had not been built did not seem to satisfy Justice Breyer, who asked him to provide the court with his proposed test that would supercede the existing test in Justice Breyer's list of eleven cases. Mr. Goodhart hit the low-hanging curve ball, arguing that the Court should stick with the existing physical takings test, and not take the bait of transporting the ad hoc regulatory takings test into flood and physical invasion cases as the government and its amici argue. Justice Breyer responded with the de minimus argument: so it's a taking when a government employee trespasses on your land? Mr. Goodhart took this opportunity to reiterate the "substantial intrusion" standard, arguing that if the invasion intereferes with some essential attribute of property, then its a taking (see, e.g., Loretto). Justice Scalia jumped back in, retorting that "[t]he park ranger walking though can hardly be called a physical occupation. He's on the land, but it's not a physical occupation. What you're -- what you're arguing here is that -- is that flooding the land is a physical occupation for the period of time that it's flooded." Justice Scalia, you complete me.
Justice Scalia, however, seemed troubled with one part of the "substantial intrusion" standard, asking whether it incorporates "a requirement that it have caused substantial financial loss?" Mr. Goodhard answered carefully, that the Court may look at the extent of the damage, but not conceding that it must, again emphasizing that perhaps it would not be necessary to address the question because there's no doubt that its trees were wiped out in this case.
In a sign that should give the property owner and its amici hope, Justice Ginsburg asked what instructions the Court should give to the Federal Circuit on remand, since the petitioner has not asked for outright reversal, but only for a vacate-and-remand. What issues, asked Justice Ginsburg (who was joined by Justice Kennedy) would the Federal Circuit need to deal with? Mr. Goodhart responded that he wished they would have asked for outright reversal, but since they have not, the remand should tell the Federal Circuit to treat this like a physical invasion case, and "look at it as the Court of Federal Claims did," which is to look at two factors: (1) was there a direct physical injury, and (2) did it result in a substantial intrusion on a property interest.
Mr. Goodhart reserved a few minutes of his time for rebuttal, and turned the lecturn over to the government's advocate; we will cover the SG's argument in our next post.
Some thoughts before we close this post. First, the property owner and its amici should satisfied with counsel's arguments and the Court's questioning. Even if a couple of the Justices appeared a bit skeptical, none were outright hostile, and no Justice seemed to want to aggressively play devil's advocate and test the petitioner's reaction to the government's argument. Second, the fact that both Justices Ginsburg and Kennedy asked about the standard on remand also tells us that there's a good chance they're thinking of vacating and remanding after throwing out the Federal Circuit's "temporary" rule. Finally, Justice Breyer's eleven case list tells us that perhaps he is looking at a way to draw a narrow ruling without upsetting those precedents.
Next up: the government's argument. Stay tuned.
Transcript of Oral Arguments, Arkansas Game & Fish Comm'n v. United States, No. 11-597 (Oct. 3, 2012)
