As you know, the U.S. Supreme Court earlier reversed
the Federal Circuit's conclusion that government-induced flooding could
not be a taking unless it was "permanent," and remanded the case
to the Federal Circuit for more.
Although the Federal Circuit indicated it would have preferred to avoid trying to deal with the issue (its order establishing a briefing schedule on remand invited the parties "to consider mediation of
the issues remaining in the case following the Supreme Court’s remand"), it looks like that's not what is happening, because the parties have filed their briefs.
The briefs appy the multi-factor Penn Central-ish "factors and circumstances" set out by the Supreme Court:
- "[T]ime is indeed a factor in determining the existence vel non of a compensable taking" Was the flooding "temporary and unplanned" and a result of "exigent circumstances?"
- "[T]he degree to which the invasion is intended or is the foreseeable result of authorized government action.
- "The character of the land at issue and the owner’s 'reasonable
investment-backed expectations' regarding the land’s use - had the area
been flooded before, and if so, was the flooding comparable to the
government-caused flooding?
- The "severity of the interference," and whether the flooding was a
single act, or part of a series (a "sufficient number and for a
sufficient time may prove [a taking]").
Supplemental Brief on Remand of Plaintiff - Cross Appellant Arkansas Game & Fish Commission, Arkansas G...
Supplemental Brief for the United States, Arkansas Game and Fish Comm'n v. United States, No. 2009-5121 (Ma...