Important property rights victory in Arkansas Game & Fish Commission v. United States

In a major property rights decision, the United States Supreme Court today, in an 8-0 opinion, held that the Takings Clause of the U.S. Constitution protects against all government invasions of private property, even if the intrusion isn’t permanent. The decision in Arkansas Game & Fish Commission v. United States reverses a Federal Circuit Court of Appeals’ opinion that, as a matter of law, temporary, government-induced flooding of private property will always be exempt from the Takings Clause.

The Arkansas Game & Fish Commission case began when the U.S. Army Corps of Engineers, as part of a temporary dam management plan, inundated the Commission’s timberlands with flood waters in each of six consecutive years during the 1990s. The Commission sued and was awarded $5.8 million in just compensation for the value of timber lost to the floods. The government appealed the judgment, insisting that it should not have to pay one penny for harm done during the years of flooding. According to the Corps, government-caused flooding must continue in perpetuity to rise to the level of a taking. Surprisingly, the Federal Circuit Court of Appeals accepted this argument, holding that government flooding of private property can never constitute a taking if it was the result of an “ad hoc” or “temporary” government policy.

Justice Ginsburg, writing for the Court, stated that takings cases are generally not subject to such rigid per se rules, “We have recognized, however, that no magic formula enables a court to judge, in every case, whether a given government interference with property is a taking. In view of the nearly infinite variety of ways in which government ac­tions or regulations can affect property interests, the Court has recognized few invariable rules in this area.”

Justice Ginsburg continued, “Because government-induced flooding can constitute a taking of property, and because a taking need not be permanent to be compensable, our precedent indicates that government-induced flooding of limited duration maybe compensable. No decision of this Court authorizes a blanket temporary-flooding exception to our Takings Clause jurisprudence, and we decline to create such an exception in this case.”

By expressly rejecting any distinction between temporary and permanent government intrusions on private property, today’s decision closes a dangerous loophole in takings law that could be exploited to allow the government to avoid its obligation to pay just compensation when it takes private property. Simply put, the Takings Clause does not come with a stopwatch. If government commits a taking, including flooding or occupying someone’s land, there is an obligation to pay, period. That obligation doesn’t depend on how long the government uses the property. Imposing arbitrary conditions and limits on the duty to compensate only serves to weaken property rights, and, by extension, all the rights secured by the Constitution.

Importantly, the Court refuted—in no uncertain terms—the government’s argument that if the Takings Clause is enforced against temporary government intrusions, federal agencies will not be able to carry out their duties.

The slippery slope argument, we note, is hardly novel or unique to flooding cases. Time and again in Takings Clause cases, the Court has heard the prophecy that rec­ognizing a just compensation claim would unduly impede the government’s ability to act in the public interest. We have rejected this argument when deployed to urge blanket exemptions from the Fifth Amendment’s instruction. While we recognize the importance of the public interests the Government advances in this case, we do not see them as categorically different from the interests at stake in myriad other Takings Clause cases. The sky did not fall after Causby [military overflights effected a taking of neighboring property], and today’s modest decision augurs no del­uge of takings liability.