U.S. Supreme Court set to determine viability of temporary physical takings

July 10, 2012 | By BRIAN HODGES

Last week, PLF attorneys filed an amicus brief on behalf of PLF, the Cato Institute, and Atlantic Legal Foundation in one of the most significant Takings Clause cases to reach the U.S. Supreme Court in recent years.  The case, Arkansas Game & Fish Commission v. United States, asks whether a temporary physical invasion of private property constitutes a taking under the Fifth Amendment, requiring the government to compensate the owner for the years during which the government occupied and used the land.  To resolve this question, the Supreme Court will consider a host of important takings issues, including the viability of takings claims based on physical invasions of a limited duration, the reach of the per se taking test set forth in Loretto v. Teleprompter Manhattan CATV Corp. (1982), the distinction between takings and torts, and the question of whether the government’s intent is relevant to determining whether a taking has occurred.


The Arkansas Game & Fish Commission owns thousands of acres of hardwood forest in Arkansas’ Upper Mississippi Alluvial Valley that are used for the harvest of mature oak trees, recreational lands, hunting grounds for migratory water fowl, and conservation and habitat areas.  Much of this land was significantly damaged when the U.S. Army Corps of Engineers, as part of a dam management plan, released water in a manner that caused six consecutive years of flooding and degraded millions of board feet of timber across about 23,000 acres of forest.  The Court of Federal Claims concluded that the Army Corps’ actions effected a taking and ordered the Corps to pay $5.8 million for the value of the timber destroyed by the floods and to restore the severely damaged portions of the Commission’s recreation and conservation lands.

But, in a 2-1 decision, the Federal Circuit reversed the trial court’s judgment, 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.  Therefore, the majority reasoned, it was unnecessary to consider the extent to which the Army Corps’ actions interfered with the Commission’s rights in its property.

The Issue

It is well-recognized that the government must compensate a landowner when it causes his or her property to be permanently inundated by flood waters.  But what happens if the government abates the flooding and restores the land to its owner?  Is the government still liable for taking the owner’s land?  Does the government’s decision to stop flooding the land change the fact that its physical intrusion deprived the owner of his or her right to use the property?  The case, Arkansas Game & Fish Commission v. United States, seeks answers to those questions.

At first blush, the answer to this question would seem to be easy.  After all, in a series of World War II wartime seizure cases, the Supreme Court held that the government must compensate landowners for its temporary occupation of private property regardless of how short the duration of the occupation was.  In fact, one of the most well-known takings cases from law school textbooks, United States v. Causby (1946), concerned a temporary physical invasion.  There, the Supreme Court concluded that the noise and glare from military overflights of heavy, four-engine bombers, transports, and squads of fighters so interfered with the use and enjoyment of Causby’s property and the commercial viability of his chicken farm (the chickens panicked, flung themselves against the walls of the coops, and died) that the Court held that the government had physically taken an easement for which just compensation was due.  In fact, the Supreme Court has even recognized that a temporary regulation could be so disruptive of a person’s rights that it effects a taking in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002) and First English Evangelical Lutheran Church v. County of Los Angeles (1987).

But at the same time, the Supreme Court has, on occasion, used the terms “permanent” and “temporary” to distinguish those physical intrusions that take an interest in private property from those that do not.  In fact, several of the Court’s early flooding cases, including United States v. Cress (1917) and Sanguinetti v. United States (1924), state that flooding must be “permanent” to effect a taking.  And in Loretto, the Court held that permanent physical invasions or occupations will always constitute takings, leaving the question whether temporary takings are given the same treatment for another day.  A divided panel of the Federal Circuit Court of Appeals seized upon these cases, without considering or attempting to harmonize the Court’s decisions recognizing the viability of temporary takings.  Thus, the court of appeals held that only flooding that results in an “actual, permanent invasion of land” rises to the level of a taking.  Temporary flooding can only be remedied by means of a tort action (which the government is generally immune from, by the way).

PLF’s Arguments

PLF’s amicus brief argues that there is no reason to treat temporary flooding any differently than other physical intrusions upon private property.  Any government act that physically interferes with private property in a manner that substantially interferes with the rights to use, possess, exclude others, or dispose of the property constitutes a taking for which just compensation is due under the Takings Clause.  The duration or method of the government interference does not change the fact that those rights were taken.  After all, if the government invades property for a brief period of time and while there causes irreparable harm, the property will be of a more limited and circumscribed nature than it was before the intrusion.

Cases involving government-induced flooding are no different.  When the government causes a river to overflow private property in a manner that directly interferes with the landowner’s rights to possess, use, exclude others, or dispose of his or her property, it appropriates a flowage easement over the land and its actions constitute a taking for which compensation is due.  The amount of time that the property is actually under water does not determine whether the harm is permanent, and, therefore termination of occupation cannot, as a matter of law, negate the existence of a taking.  After all, the act of directing a river’s flow onto a person’s property is as marked an infringement of his or her proprietary rights as it would be for the government to drive a bulldozer across the land and remove the same soil and trees that were harmed by its flood waters.

Given this, PLF’s brief urges the Supreme Court to reject the Federal Circuit’s conclusion that flooding must continue indefinitely to effect a taking and reaffirm the constitutional principle that a physical invasion of private property, by the government, that directly interferes with the landowner’s rights to use, possess, exclude others, or dispose of the property constitutes a taking for which just compensation must be paid

The parties are still in the process of briefing the merits of the case, which is scheduled to be argued in October (the Court’s docket is here).

Our friends at the Cato Institute have written about this case here, and our friends at inversecondemnation.com have written about this case here and here.