Arkansas Game & Fish: buying unity at the expense of clarity?
Professor Ilya Somin, writing on the Volokh Conspiracy, praised today’s U.S. Supreme Court decision in Arkansas Game & Fish Commission v. United States as “a rare unanimous victory for property rights” and “an important step in rejecting the federal government’s extreme position that temporary flooding can never be a taking.”
Professor Somin highlights, however, a couple a paragraphs toward the end of the decision that injected unnecessary confusion into an otherwise clear opinion. The Court wrote:
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.
Also relevant to the takings inquiry is the degree to which the invasion is intended or is the foreseeable result of authorized government action. So, too, are the character of the land at issue and the owner’s “reasonable investment-backed expectations” regarding the land’s use. For example, the Management Area lies in a floodplain below a dam, and had experienced flooding in the past. But the trial court found the Area had not been exposed to flooding comparable to the 1990’s accumulations in any other time span either prior to or after the construction of the Dam. Severity of the interference figures in the calculus as well.
Professor Somin writes:
Unfortunately, the Court gives very little guidance on how to determine whether a given case of flooding is a taking or not. The opinion lists several factors that might be relevant, but does not explain how many need to be present before a taking can be said to have occurred, or what to do if some factors cut one way and some the other. …
I suspect that the justices bought unity at the expense of clarity here. In the meantime, it seems clear that Arkansas Game and Fish Commission is going to result in further litigation in the lower courts, as property owners and government agencies advance competing interpretations of the Court’s vague standards for determining whether a temporary flood qualifies as a taking or not.
While I agree that the language is unclear, I am not so sure that the quoted passage will cause too much confusion in future litigation. The passage lists, without differentiation, various tests, developed over the years, to determine regulatory and/or physical takings. For example, the Court recites the “intent or foreseeability” and “character of the invasion” tests from Ridge Line, Inc. v. United States (2003) and Portsmouth Harbor Land & Hotel v. United States (1922)—both are tests that have never been applied to regulatory takings. So too, the decision recites the “reasonable investment backed expectations” test for ad hoc regulatory takings adopted in Penn Central Transp. Co. v. New York City (1978)—a test that has never been applied in the physical invasion context.
Although some may be tempted to argue that the Court created a chimera from blended regulatory and physical takings tests, the Court did not intend to do so. Instead, the Court stated that its decision was narrow, “We rule today, simply and only, that government induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.” And elsewhere, in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002), the Court advised that it is “inappropriate to treat cases involving physical takings as controlling precedents for the evaluation of a claim that there has been a ‘regulatory taking’ and vice versa.” The upshot being that the tests that control physical invasion takings still control physical takings cases, and the tests that control regulatory takings still only apply in regulatory takings cases.
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