Here's the cert petition we've been waiting to drop in a case we've been following closely.
Last we checked in, the Federal Circuit (any guess on which judge?) held that the catastropic Katrina flooding -- caused mostly by the federal government's construction and maintenance of a navigation project, the Mississippi River Gulf-Outlet canal (known as MR-GO) -- could only result in tort liability, for which the federal government has already been determined to be immune. MR-GO was an attempt to improve navigation, and it obviously wasn't the sole cause of the flooding, but by all accounts (and the proof in the Court of Federal Claims) it ended up worsening dramatically and magnifying the effect of Katrina. The CFC concluded this was a taking, and awarded just compensation.
Now, St Bernard Parish has asked the Supreme Court to step in. Here are the Questions Presented:
In Arkansas Game, this Court admonished the Federal Circuit to eschew “blanket exclusionary rules” immunizing the Government from liability in takings cases. Arkansas Game and Fish Comm’n v. United States, 568 U.S. 23, 37 (2012). Nevertheless, the Federal Circuit in this case adopted two such categorical exemptions. The questions presented are:1. When a government project foreseeably causes catastrophic flooding of private property, is the Government categorically exempt from takings liability on the ground that its failure to take steps to prevent or mitigate the project’s destructive effects amounts to “inaction”?2. Is the Government categorically exempt from takings liability any time a government flood control structure fails to prevent flooding, even if the Government’s own intentional conduct relating to a separate project having nothing to do with flood control foreseeably caused the failure of the flood control structure and the resulting flooding?
Judge Dyk also authored the overturned Federal Circuit Arkansas Game opinion, which also adopted one of those categorical rules the Supreme Court seems clearly to disfavor in takings cases. So we shall see what happens next.
We thought this case had a good chance (still do). The Federal Circuit's panel opinion based its reversal of the CFC judgment on two theories. First, "the government cannot be liable on a takings theory for inaction." Second, "government action in constructing and operating MRGO was not shown to have been the cause of the flooding." Here's what we wrote in our criticism:
the remainder of the opinion doesn't so much focus on a lack of evidence, but in reality adopts a categorical rule that "inaction" in maintaining MRGO results in a blanket exception to takings liability. This diverges from at least four other lower courts (the Court of Appeal of Maryland, that state's highest court, and the Supreme Courts of California, Florida, and Minnesota), which conclude that government inaction in the face of a duty to act supports an inverse condemnation claim. And remember in Arkansas Game and Fish where the Supreme Court cautioned against per se rules in flood takings cases?Because government-induced flooding can constitute a taking of property, and because a taking need not be permanent to be compensable, our precedent indicates that government-induced flooding of limited duration maybe compensable. No decision of this Court authorizes a blanket temporary-flooding exception to our Takings Clause jurisprudence, and we decline to create such an exception in this case.Something tells us we haven't seen the last of this case.
At least on that last bit, we were correct. Stay tuned for more.