More briefs, fewer answers in Arkansas Game & Fish Commission

Last week, I reported that the federal government’s merits brief in Arkansas Game & Fish Commission shed very little light on the question whether recurring flood invasions must continue permanently to take property within the meaning of the Takings Clause. Unfortunately, the two amicus briefs filed in support of the federal government offer little additional insight into this important question of constitutional law.

The Commission’s merits brief and PLF’s amicus brief highlight a series of U.S. Supreme Court decisions—United States v. Lynah (1903), United States v. Welch (1910), and United States v. Dickinson (1947)—recognizing that temporary flooding can result in a taking of private property.  In later decisions, the Court explained, on the one hand, that physical invasions must create a permanent condition on the property to effect a taking, while on the other hand, finding that takings occurred in a variety of circumstances where the government invasion or occupation was limited in duration. PLF attorneys reviewed the Court’s body of physical takings law and concluded that the “permanence” requirement refers to the harm resulting from invasion—not its duration.

An amicus brief filed on behalf of municipal lawyer associations ignores the cases recognizing that temporary flooding can effect a taking.  Instead, the brief cherry picks cases that, if read in isolation, could immunize the government from any takings liability where its invasion is not perpetual in duration. Based on this fractured view of takings law, the municipal lawyers suggest that the Fifth Amendment should be applied to provide greater or lesser protections depending on the method by which the government appropriates an interest in private property. Unsurprisingly, the municipal lawyers argue that government-caused flooding of private property is one of those methods that should enjoy lesser constitutional protection.

And an amicus brief filed by three water/property law professors is simply off point. The law professors discuss, at length, Arkansas law regarding conflicting uses of water, and opine whether the Commission had a right to maintaining the flow of water passing by its land. This case, however, concerns the federal government’s destruction of $5.4 million of timber. It does not involve competing water rights.

Hopefully, the Supreme Court will notice that the federal government and its amici have avoided any discussion of the Court’s early decisions recognizing that temporary flooding can result in a taking and ask the federal government to address those cases during oral argument.