Justice Kennedy Meets Tom Lehrer (and Wernher von Braun)

Today’s New York Times brings a dispatch about yesterday’s oral arguments in Arkansas Game & Fish Commission v. United States. That’s the one where Uncle Sam released water from a dam intermittently over a period of several years and destroyed millions of dollars’ worth of standing state-owned timber in the process. The U.S. Court of Federal Claims found this to be a taking and awarded some $5 million, but the Federal Circuit reversed on the grounds that the taking was temporary.  SCOTUS granted cert.

At oral argument, neither side’s lawyers covered themselves with glory. According to the N.Y. Times (Adam Liptak, Justices Press Lawyers For Broad Solutions, N.Y. Times, Oct. 4, 2012 at p. A22) the lawyer for the Arkansas Commission babbled about there being no bright line, and that “it’s going to depend on the facts.”  And here we thought that the the outcome of all cases depends on the facts, and that the function of appellate courts is to decide what rule of law applie to those facts as found in trial. Besides, the overriding fact of this case was that this was a physical taking — the feds inundated the subject property, thus physically displacing its owner from the subject land for the duration of the inundation, and causing physical destruction of millions of dollars’ worth of standing timber. Sounds like a taking to us. How much clearer than that could a “line” get? We thought that SCOTUS explained why flooding is a taking in the Pumpelly case, stressing that it deprived the owner of his right to use his land the same as in a formal fee simple taking. Or, if you prefer something more recent, in Justice Brennan’s words:

 ”From the property owner’s point of view, it may matter little whether his land is condemned and flooded, or whether it is restricted by regulation to use in its natural state, if the effect in both cases is to deprive him of all beneficial use.” San Diego Gas & Electr. Co. v. San Diego, 450 U.S. 621, 652 (1981), citations omitted, Brennan, J., dissenting.

So it boils down to an explanation of why a temporary inverse taking should not be compensable, when a temporary direct taking is.

We have a sneaky hunch that being asked from the bench to formulate a “bright line” was a disaster for the state. Although the state found itself in this case in the unusual role of a plaintiff/inverse condemnee, state entities are usually defendants in inverse condemnation cases, and the last thing they want is to have  to face a bright-line rule that would enable future landowner-plaintiffs to recover compensation once that bright line is crossed. Those folks much prefer multi-factor “balancing tests” that enable the (usually government-minded) trial judges to balance away and eventually conclude that – surprise, surprise – the state wins. So in the Arkansas case, the state’s lawyer babbled away about how “it’s going to depend on the facts” and plumped for a “balancing test.”

But having read the headline to this post, you must be wondering what all this has to do with Wernher von Braun. So here goes. It seems that when the federal government’s lawyer was arguing, he presented a position that was an artful blend of  evasivness and chutzpa. According to him there should be no liability for “temporary” inundation ever. By that “reasoning” Noah’s flood was only “temporary” and never mind if the Lord used it to destroy the world. Eventually it receded.

Additionally, the feds argued that if the floodwater comes from the reservoir directly there is no liability for the resulting taking, and when the inundation comes from below the dam, that is also not a compensable taking. That aroused Justice Kennedy’s sense of fairness and precipitated the observation that this reminded the good Justice of “the old moral of [sic] refuge that the rocket designers take. You know,” continued Justice Kennedy, “I make the rockets go up. Where they come down is not my concern.”

While we appreciate Justice Kennedy’s sense of justice, and his touch of humor didn’t hurt either, he managed to mangle an amusing bit of  history. The correct statement came to us from Tom Lehrer, a witty Harvard math professor who provided us with some entertaining musical comedy by composing several songs satirizing various social topics and persons, one of them being Wernher von Braun, one of the Germans responsible for the development of V-2 rockets that the Nazis used to attack London in World War II. Since in his misspent youth your faithful servant was a rocket engineer (who at one time worked with Wernher’s brother, Magnus von Braun – which is another story) he rises to the occasion to make two points. First, the line about not caring where “ze rockets come down” was satire not a “moral refuge.” They cared very much about accuracy and were amazingly successful at achieving it. If you don’t think so, consider the difficulty of firing an ICBM over a distance of 5000 miles and making sure it lands in the proverbial “pickle barrel.” Second, the Wernher von Braun line [per Tom Lehrer's satirical song] that Justice Kennedy tried to repeat, went: “‘Once the rockets are up, who cares where zey come down? That’s not my department,’ says Wernher von Braun.”

We hope that somebody on the court will have the good sense to explain (or try to) why precisely the same government act that deprives a land owner of all  use of his land indefinitely is a compensable taking, but one that lasts for “only” five years isn’t. Wouldn’t the difference in duration go to the quantum of damages rather than to liability? And would a replication of Noah’s flood that destroyed the world be noncompensable? After all, it was  ”temporary.” And what about the destruction of all that timber? And why can Uncle Sam take a five-year leasehold by filing an action in eminent domain which requires payment of just compensation, but can get off scot-free when he ignores his duty and just seizes the subject land for the same duration?

 This post was edited on October 4, 2012, at 11:02 PM

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