August 29, 2012

U.S. merits brief sheds little light on temporary takings questions

By Brian T. Hodges Senior Attorney

Earlier this week, the government filed its merits brief in the temporary physical takings case, Arkansas Game & Fish Commission v. United States. Many of us were eagerly awaiting the brief to see how the government addressed the temporary takings debate, particularly in regard to the U.S. Supreme Court’s foundational takings precedents. We were disappointed.

As you may recall, the Arkansas Game & Fish Commission case arose from a Federal Circuit decision concluding that, as a matter of law, government flooding of private property can never constitute a taking if it was the result of an “ad hoc” or “temporary” government policy because, according to the court of appeals, temporary flooding can never give rise to a taking. 

PLF attorneys filed an amicus brief discussing the long pedigree of temporary takings before the U.S. Supreme Court. The Court first recognized that the government could effect a taking by exposing private property to floodwaters in the 1871 decision, Pumpelly v. Green Bay & Miss. Canal Co. That decision recognized the fundamental principle that the government must compensate a landowner to the extent that it causes an invasion of private property, thereby exercising dominion over the landowner’s rights and inflicting irreparable harm.

Over the next several decades, the Court decided a series of flooding cases that recognized that a temporary invasion may effect a taking. In its 1903 decision, United States v. Lynah, the Court held that the government was required to compensate a landowner for the value of property damaged by government caused flooding, even though much of the flooding could be prevented and portions of the land reclaimed in the future. A few years later, in United States v. Welch (1910), the Court reiterated the point it made in Lynah: If the government had caused flood waters to enter and destroy private property, then stopped the flooding, its actions would still amount to a taking. And forty years later, in United States v. Dickinson (1947), the Court applied this principle, holding that the government had effected a temporary taking when it caused private property to be inundated by floodwaters for a period of years (the landowner was eventually able to abate the flooding). These cases provided the groundwork for the Supreme Court to recognize the viability of temporary takings claims in a variety of circumstances, including wartime seizures, airplane overflights, and regulatory takings.

So, what is the government’s take on these cases? How can the Federal Circuit’s decision stand against these well-settled precedents? We don’t know. The government failed to discuss these fundamental flooding cases. And as a result, its brief sheds very little light on the question whether government-caused flooding must continue permanently to take property within the meaning of the Takings Clause.

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