Two-Cheers for SCOTUS’ Arkansas Fish & Game Inverse Condemnation Decision

SCOTUS has handed down its decision in the Arkansas Fish & Game Commission v. United States case, and has come down unanimously on the side of the property owner (which in this case happens to be the State of Arkansas — of which more presently), with Justice Kagan abstaining. The facts were straightforward. The feds released water from their dam, flooding Arkansas state forest land over a period of several years. Eventually the feds drained the floodwaters, but the flooding had destroyed valuable standing state timber, for which the U.S. Court of Federal Claims awarded over $5 million. A taking? Seems that way to us.  Inundation of land has been deemed a taking at least since the 19th century Pumpelly v. Green Bay Canal Co. case, and destruction of property for a pulic use (except to stop a conflagration or by troops in wartime) is deemed to be a taking, as the court pointed out in the General Motors case. The more recent case of Cooper v. United States, 827 F.2d 762 (Fed.Cir. 1987) seems directly on point in favor of the Commission. And temporary takings are compensable — the difference being that in temporary takings the taker pays rent instead of fair market value of the taken land.

Anyway, the unanimous 8-0 decision of today comes down basically on the side of common sense and holds that the destruction of the state’s timber by the feds’ “temporary”  floodings was a compensable taking. Seems clear to us. Permanent takings are compensable so why shouldn’t temporary ones be also compensable, with the permanent/temporary distiction going to the measure of damages? In a rational legal world, that decision would have been as hard as falling off a log. But who says the law of eminent domain is rational? Instead of giving us a sensible, workable rule, the court couldn’t resist it and created another morass of the it-all-depends variety? Why? The court didn’t say. And here we thought that physical takings — and flooding land seems to us to be about as physical as it gets — are takings per se.

So what that means now is that the question of when a temporary taking (by flooding) is compensable, remains just that — a question to be quibbled over on a case-by-case basis. And if the Penn Central case, with its confusing “three-part test” is any example, that sort of rule only gives judges the opportunity to quibble and, life in court being what it is, to rule in favor of the government in most cases, irrespective of what the facts are. For a full autopsy of Penn Central aand its baackground, see Gideon Kanner, Making Laws and Sausages: A Quarter-Century Retrospetive on Penn Central Transportation Co. v. City of New York, 13 Wm. & Mary Bill Rts. Jour. 679 (2005).

Still, a win is better that the proverbial poke in the eye, so we should rise above our usual curmudgeonliness and say something nice about the court’s ruling and about the prospects of employment of specialized lawyers. Hence the title of this post.

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