The basic news is that the U.S. Supreme Court granted certiorari in a case from Arkansas, in which the state is suing the feds for temporary flooding of state land thereby destroying some forest land and effecting a physical taking. You can get the details and the question presented at www.inversecondemnation.com and we recommend that you do. Click here.
Since the lower court (the U.S. Court of Appeals for the Federal Circuit which handles all inverse condemnation cases against Uncle Sam) reversed the trial court award of compensation on the grounds that the taking was temporary and as such noncompensable, there is hope for improvement in the law. But living up to our reputation as a curmudgeonly pessimist, we aren’t holding our breath. Every time SCOTUS has messed with a taking case involving water recently (e.g., SWNCC and Rappanos, come to mind) it left the law in shambles. We hope it won’t happen again. Then again, to invoke the line of Brendan Behan, “I cannot conceive of a situation so wretched that the appearance of a policeman couldn’t make worse.” Substitute “water case” for “situation,” and “SCOTUS” for “a policeman,” and you are likely to get it right.
Our own view, for whatever that may be worth, is that the entire temporary-flooding-is-not-a-taking shtick doesn’t make much sense. For if it would be a taking if permanent, it’s also a temporary taking when its duration is less than in perpetuity. After all, the federal government can take property temporarily by eminent domain when it condemns a lease, even a short-term lease. So why wouldn’t a short-term taking sans the required legal niceties of an eminent domain action be any less a taking? Didn’t SCOTUS hold in the Dow case that physical seizure unaccompanied by a court order, and indeed without any judicial proceedings, is a constitutionally acceptable way of the government exercising its power of eminent domain? If anything, an inverse taking should be deemed a taking a fortiori. We see no rational, moral, or doctrinal reason why, when the government obeys the Uniform Relocation Assistance Act and files an eminent domain action to effect a temporary taking, it has to pay just compensation, but when it acts in a scofflaw fashion and just seizes land temporarily (or, as here, floods it temporarily, depriving its rightful owner of its use, damaging the land in the process, and thus effecting a physical taking) it should get a constitutional free pass.
The duration of the taking should go to the quantum of compensation, not to liability. But, of course, SCOTUS has ruled both ways on the issue of liability in temporary taking cases — see Tahoe Sierra Preservation Council and compare the First English Evangelical Lutheran Church case. So maybe SCOTUS took this case to straighten things out. Can that be? Let’s hope so.
Horrifying afterthought. The First English case was decided in 1987. That’s 25 years ago — a quarter of a century. Which means that your typical U.S. Supreme Court clerk has no independent memory of it.
Follow up. An eagle-eyed reader points out that we may be barking up the wrong tree. The claim in this case is inter alia that the flooding caused the destruction of timber owned by the State of Arkansas. That, it would seem, has nothing to do with whether the taking of the subject land was temporary or permanent, since either way, government destruction of timber is in itself a taking. See Cooper v. United States, 827 F.2d 762 (Fed.Cir. 1987). So we better keep watching this one.