This just in: the Supreme Court has issued a unanimous opinion (authored by Justice Ginsburg) in Arkansas Game and Fish Comm'n v. United States, No. 11-597 (Dec. 4, 2012), holding that government induced flooding is a taking, even if temporary.
The Court roundly rejected the Federal Circuit's conclusion that flooding caused by the Corps of Engineers water releases from a dam did not result in a taking because it eventually stopped which "at most created tort liablity."
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 property (the G&F Commission is seeking compensation only for the loss of its trees), it's a taking for which just compensation is required. Our brief pointed out a somewhat obscure case that sets forth this test (National Bd. of YMCA v. United States, 395 U. S. 85, 93 (1969)), and it looks like the justices picked up on it. We had predicted a property owner victory, "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," and a quick review of the opinion reveals that's what we've got.
We rule today, simply and only, that government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking. See Loretto, 458 U. S., at 435, n.12 (temporary physical invasions should be assessed by case-specific factual inquiry); Tahoe-Sierra, 535 U. S., at 342 (duration of regulatory restriction is a factor for court to consider); National Bd. of YMCA v. United States, 395 U. S. 85, 93 (1969) ("temporary, unplanned occupation" of building by troops under exigent circumstances is not a taking).
Slip op. at 14. The Court sent the case back to the Federal Circuit for further consideration.
We'll have a more in-depth report after we review the opinion in detail. But for now, the takeaway is that this is a great win for property owners and their constitutional rights. Congratulations to the G&F Commission and their counsel, as well as all the amici who supported them.
Arkansas Game and Fish Comm'n v. United States, No. 11-597 (Dec. 4, 2012)
