SCOTUS Arkansas Game Oral Argument: A New High Water Mark for 5th Amendment Takings?

Black River – Wikipedia

The 1980s and early 1990s was a high-water mark for property owners asserting rights under the Fifth Amendment’s Takings Clause.  In a series of decisions during that period (including Loretto v. Teleprompter Manhattan and Lucas v. South Carolina Coastal Council), the U.S. Supreme Court expanded the rights of land owners to demand compensation from governments that interfere with their property rights and established certain categories of “takings” for which compensation is always required.  But more recent High Court decisions have been less favorable to land owners.  Indeed, some commentators have suggested that the Court’s 2002 Tahoe-Sierra decision makes it exceedingly difficult ever to obtain compensation when the government interference is temporary in nature.

Property rights appear poised to make a comeback, however, in connection with a case now before the Supreme Court.  Yesterday’s oral arguments in the case, Arkansas Game and Fish Comm’n v. United States (WLF’s amicus brief here) suggest that none of the Justices are buying the federal government’s contention that no compensation is due land owners whose property is damaged by government-induced floods so long as the flooding is only temporary in nature.

The case arises in connection with the federal government’s releases of water from a dam it operated on the Black River in Missouri.  Between 1993 and 2000, the government deviated from its normal release policy—a policy that had been in place since 1953.  According to findings by the U.S. Court of Federal Claims (following a lengthy trial), the actual and foreseeable result of this new policy was to cause unprecedented summer flooding of downstream wilderness property owned by Petitioner.  The government adhered to these “deviations” from its normal release policy despite the property owner’s repeated protests that the summer flooding was destroying valuable timber.  Only after the government recognized the full extent of the damage (losses of timber worth millions of dollars) did it cease its deviations.  The trial court awarded the Petitioner $5.8 million under the Takings Clause, which requires “just compensation” for property taken by the government.

On appeal, the U.S. Court of Appeals for the Federal Circuit did not question any of the trial court’s factual findings.  It nonetheless reversed, holding that a government-induced flood is never compensable under the Takings Clause when it is temporary in nature.  The Federal Circuit deemed the government-induced summertime flooding to be a mere “temporary” interference with property rights because, although it continued for seven years, the federal government never purported to adopt its new water-release policy on a permanent basis—it was always labeled a “deviation” from standard policy.

The Supreme Court last summer agreed to review the Federal Circuit’s decision.  Judging from yesterday’s oral arguments, it is highly likely to reverse, perhaps by a unanimous 8-0 vote (with Justice Elena Kagan recused).  The Justices simply were not buying the federal government’s contention that property owners downstream from a dam are never entitled to compensation for the damage that results when water released from the dam causes a temporary flooding of their property.  When the federal government’s attorney noted that Congress in 1928 passed a law exempting the U.S. from liability for flood damages caused by its operation of dams, Justice Scalia responded dismissively that the federal government is not entitled to exempt itself from the requirements of the U.S. Constitution.

The Court is highly likely to reinstate the case and then remand it to the Federal Circuit for reconsideration.  At that point, the federal government will be free to raise other defenses, including its assertion that other factors (including changing rainfall patterns) were the actual cause of the destruction of the property owner’s timber. Continue reading “SCOTUS Arkansas Game Oral Argument: A New High Water Mark for 5th Amendment Takings?”