Later today the Supreme Court will hear oral arguments in Arkansas Game & Fish Comm'n v. United States, No. 11-597 (cert. granted Apr. 2, 2012), to review the Federal Circuit's conclusion that flooding caused by the Corps of Engineers was only temporary, and even thought it destroyed trees owned by Arkansas, it was not a compensable taking merely because the flooding 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.
We 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 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."
We'll post the transcript when it becomes available, and digest it to see if there's anything giving a hint at what the Justices think about these issues. In the meantime, check out SCOTUSblog's preview of the arguments. Also, you really must read Gideon Kanner's thoughts on the arguments. He's been at this game longer than most of us, and his post is a tour-de-force and a great history lesson for anyone interested in takings law.
Besides, with a title like "Bullshit In Court. Again," how can you possibly resist reading it?
