The Arkansas Fish & Game Case Revisited

We finally got a chance to read the brand new SCOTUS opinion in Arkansas Fish & Game Commission v. U.S.,  and, with all due regard for the owner’s win, we conclude that, in a manner of speaking, it rounds up the usual suspects: it evades clarity in favor of uncertainty. It gives us more “factors,” as if the existing pile of them were not enough, and does so where it isn’t necessary. Why not? Because flooding is flooding — it covers the ground with water and renders it unusable, making the invasion a categorical, physical taking as SCOTUS explained way back in the 19th century case of Pumpelly v. Green Bay Canal Co case, so that the duration of that taking goes to the quantum of damages, not to liability.

But first, a word about a fact that has gone without notice or commentary. The flooding in question was not the consequence of some sort of government project pursued to benefit the public. The water that flooded the Arkansas forest preserve was released by the feds at the request of local farmers who evidently wanted more water without paying for it. You know, a pursuit of the good ol’ free lunch. So  the benefit was not to the public, but to specific individuals who wanted a federal benefit at the expense of their neighbor which in this case just happened to be the public. So slice it any way you want, this was a taking of public property for private use without compensation, which to us at least fails to ring any constitutional bells. Seems to us like this caper stood the constitutional concept of public purpose or public benefit on its ear in the Court of Appeals. The answer to those farmers’ demans should have been a polite but firm “Screw you! If you want the government to act for your private economic benefit  in a way that is injurious to your neighbor, pay for the damage you want inflicted on him.” But hey man, this kind of economic and moral jiggery-pokery has been with us ever since Clark v. Nash (1905) where a farmer was permitted to condemn his neighbor’s land to expand his farming operations (see 33 Pepperdine L. Rev. at 350-352) (except in Clark the taker wasn’t trying to avoid paying for the taking), but that fact does not make such doings any more doctrinally or ethically palatable. All it accomplished in this case was the goverment trying to facilitate a shirking of the duties of the farmers to pay for benefits received by them at their neighbor’s expense, and using the force of government to shift the economic burdens of onto the Arkansas taxpaying public. Doesn’t sound to us like an exercise of “political ethics,” a term which SCOTUS used in United States v. Cors to characterize the exercise of the taking power by the government.

Nominally, the Arkansas Game & Fish opinion professes only to tell us that the fact that a taking (flooding) is temporary, does not in itself establish it as being noncompensable. But the body of the opinion is larded with the ususl incomprehensible judicial babble that is familiar to us from other comparatively recent taking cases. There is mention of the good ol’ “magic formula”  to which we must not look to establish inverse condemnation liability — admonishes Justice Ginsburg. As if other fields of constitutional law were replete with such “formulas,” making it easy to establish the constitutionality vel non of the challeged actor’s conduct. Just ask a cop how easy it is to find a “magic formula” for search and seizure, probable cause, use of the Miranda rule, and all that other criminal/constitutional gobbledygook. (see 19 Loyola L.A. L. Rev. at 713-715). And how can we fail to mention the repeat appearance of those ever popular “reasonable investment-backed expectations” that Justice Brennan’s clerk lifted, sans attribution, from Frank Michelman’s law review article, and that have been mystifying the consumers of decisional law in this field, ever since the 1978 Penn Central decisions where it first made its appearance in decisional law? And so, instead of the three-factor Penn Central mish-mash (which is confusig enough), we now also have a “time factor” to consider — how long is “temporary” so as to make the temporary taking compensable? We note in passing that when the feds want to occupy private property at the end of a lease, they see no problem filing a formal eminent domain action for as little as one — count ‘em, one — year. See United States v. 300 Units of Rentable Housing etc., 668 F.3d 1119 (9th Cir. 2012). So why isn’t a taking for a similarly short period of time equally compensable when it is accomplished without the niceties of due process?

Finally, we now have to contend with mind-reading: we have to plumb the bureaucratic mind to determine the “degree to which the invasion is intended or is a foreseeable result” of the government’s acts. And here we thought that — at least out here in the provinces where we practice — inquiries into government officials’ intent are a no-no. Go figure.

Bottom line: as noted above, in United States v. Cors, SCOTUS explained that the exercise of the taking power is an act of “political ethics.” But what we see here is much politics and very little ethics, even if in terms of result the court came down on the right side.*

Postscript. Of course, this opinion is a tour de force of doctrinal confusion on another point: it confuses the criteria of a regulatory taking with those of a physical taking. We should have mentioned that expressly, but since others did, we thought it wouldn’t be necessary. Wrong! You can never be too explicit, particulatrly in this fershluggenes field of law.

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* But keep in mind that the case will now go back to the lower court(s) where Uncle Sam’s liability will be tried without the benefit of the feds’ defense that this taking was only “temporary.” Stay tuned.


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