More thoughts on the Arkansas Game & Fish Commission argument

Earlier this week, the U.S. Supreme Court heard arguments in the temporary taking case, Arkansas Game & Fish Commission v. United States (the transcript/audio can be found here).  The issue in this case is whether government-caused flooding must continue permanently to take property within the meaning of the Takings Clause.  As reported in an earlier blog post, there is some confusion in the U.S. Supreme Court’s case law on this point.  On the one hand, the Court has repeatedly found that temporary physical invasions constitute a taking.  But, on the other hand, there are at least two cases that seem to indicate that flooding must be permanent to effect a taking.

Legal commentators largely agree that a majority of the Supreme Court Justices appeared sympathetic to the Commission’s argument that temporary flooding could constitute a taking (see comments on the The Volokh Conspiracy, Greenwire, SCOTUSblog, and NFIB’s Voice of Small Business).  I agree with their conclusions.  But, after reviewing the arguments I am left pondering how the Court will resolve several issues.

How will the Court deal with conflicting decisions?

The primary issue that the Court will have to resolve is the apparent conflict in its takings case law.  In Sanguinetti v. United States (1924) , the Court stated that flooding must “constitute an actual, permanent invasion of the land” to effect a taking.  Other cases are less explicit, but seem to rely on the temporary/permanent distinction.  Justice Ginsburg asked whether the Court would have to overrule or modify Sanguinetti and other decisions.  Justice Scalia did not believe that was necessary because the language quoted from Sanguinetti was dicta, and, insofar as the decision posits that a temporary invasion cannot constitute a taking, it has already been overruled by the Court’s large body of cases recognizing that temporary interferences can constitute takings.  Justice Breyer, however, opined that Sanguinetti may set out a special rule exempting government-caused flooding from the ordinary rules of takings law, even though it would appear to be “a somewhat arbitrary rule.”

It seems like a majority of the Court is leaning toward reversing the Federal Circuit Court of Appeals’ conclusion that a temporary flood invasion can never constitute a taking.  What is uncertain will be the breadth of the decision.  Will it require the Court to overturn old case law?  Will the Court reassert a test that harmonizes its case law (a point that PLF argued in its amicus brief).  Or, will the Court devise an entirely new test?

What is the test for temporary physical takings?

As expected, much of the argument focused on defining the proper test by which a court could distinguish those temporary physical invasions that will give rise to a taking from those that will not.  On this point, Justice Sotomayor echoed several points raised in PLF’s amicus brief.

Justice Sotomayor noted that courts have been inconsistent in their use of the term “temporary”—it has been used to describe the duration of the government act, duration of the effect, the impermanence of harm, etc.  Therefore, “temporary,” alone, cannot provide a touchstone for determining whether a taking has occurred.  Instead, courts have determined physical takings by analyzing questions going to causation and foreseeability—i.e., the “character of the invasion” test spelled out in PLF’s brief.

Most of the Justices seemed to adopt the “character of the invasion” tests when asking the parties to comment on hypothetical questions—the notable exceptions being Justices Scalia and Breyer.  As Justice Scalia points out, physical takings are treated differently than other types of takings.  Government-induced flooding “is a physical occupation for the period of time that it’s flooded.”  Any physical invasion will deprive an owner of the use and enjoyment of his or her property and, therefore, effects a taking.

Justice Breyer, however, felt that there was something substantively different about flooding that made it distinct from all other physical invasions— “you’re not physically taking hold of the whole thing.  You’re sending something in that comes back.”  Does this justify a per se rule that would exempt government-caused flooding from ordinary takings law?  It is unclear what he thinks.  Justice Breyer recognized that such a rule seems “arbitrary.”  But, then, he said that he was “tempted” to just go with the imperfect rule unless and until someone could articulate a test that could distinguish a trespass from a taking.

While there remains some uncertainty about the precise test the Court will ultimately adopt, none of the Justices were receptive to the federal government’s argument that the Takings Clause does not protect against floods that occur downstream of a dam; it only protects property behind the dam.

“So,” asked Chief Justice Roberts, “if the government comes in and tells a landowner downstream that every March and April we are going to flood your property so that you can’t use it from now on — that’s part of our plan — that’s a taking for those two months, correct?”  The Deputy Solicitor General answered, no.  To which the Chief Justice incredulously shot back, “That’s not a taking?”

“Your position seems to be that if it’s downstream, somehow it’s not the government’s water,” said Justice Kennedy.

Justice Sotomayor stated that she had “significant problems” with the federal government’s articulation of takings law.

And Justice Breyer expressed concern that, under the administration’s per se test, a downstream landowner could never recover for flooding.

What rights exist on property downstream of a government-operated dam?

The most difficult—and perhaps the most important—question concerns an issue that was not addressed in any of the briefs.  Justices Ginsburg, Kennedy, Breyer, Alito, and Sotomayor repeatedly asked how a court, applying the “character of the invasion” test or any other test, could distinguish flooding that is caused by the government from flooding that would naturally occur but for the government’s erection and operation of the dam.

“The problem with this case,” Justice Sotomayor explained, “is that flooding is going to occur naturally anyway. The government generally builds dams to control that flooding to the benefit of all of the interests along its affected route. And at some point, either the government is going to make a decision that’s going to help someone and potentially hurt someone. And the question is, are all of those situations going to be subject to litigation.”

Justice Kennedy rephrased the question to ask how the Commission would “define the baseline of protected property expectations for the property.”

The point of this questioning was to elicit arguments whether (1) a landowner has a protected interest in uses that are made possible only by the government’s continued operation of a dam in a manner that benefits the property, or whether (2) the owner only has a protected interest in those uses that existed before the erection of the dam.

In essence, the Court asked whether a landowner can claim a protected right in the government continuing to provide a benefit to his or her property.   This harkens back to the decision, Board of Regents of State Colleges v. Roth (1972), where the Court recognized that, under certain circumstances, government benefits could rise to the level of a property interest protected by the Constitution.  While Roth is not directly applicable (the doctrine concerns whether due process attaches to statutory benefit program such as social security, welfare, or government employment), it does open the door to the concept that government action can create property expectations.

Of course, as the Commission pointed out, the Court does not need to reach this difficult question in this case because, prior to the years of flooding, the government had operated the dam in a manner that mimicked the pre-dam flow regime.

The federal government unconvincingly argued that a landowner has no protected interest in his or her use of riverfront property.  According to the Deputy Solicitor General, one of the “natural” risks one assumes when purchasing a riparian property is that government will adjust its water release policies in a manner that takes one person’s property to benefit another.

Justice Scalia disagreed, “I don’t think — one of those risks has to be the Government[.]”

The administration then argued that the owner of downstream property has no expectation that his or her land will not be flooded because Congress enacted a statute that makes the government immune from tort liability for floods resulting from the operation of dams.

Justice Scalia rejected that argument as well, “Of course, that [statute] can’t overrule the Takings Clause, can it? … I mean, that’s nice that Congress doesn’t want to be liable.”

Of course the government can be liable for a taking when it chooses who will be the winners and losers

Much of the federal government’s argument focused on the fact that, when it comes to water policies, there will always be winners and losers.  And it is up to the government to choose who they will be (or, in government speak, “adjust the benefits and burdens”).  In this case, it chose to release water in a manner that benefited upstream farmers which naturally resulted in downstream flooding.  In the administration’s view, the public received a net benefit and it should not be held liable for a taking.

This resulted in two of the most absurd arguments of the day:

First, the administration argued that it can never be required to pay just compensation for flooding to downstream properties because such injuries are “consequential” to the government’s water management policies.  According to the federal government, the Takings Clause will only protect landowners if the government physically and directly pipes the water onto the downstream property—if it merely opens a nozzle and lets a river direct the water over the land, it is not the government’s fault.

Justice Kennedy likened the administration’s argument to the “moral refuge” taken by German rocket scientists during World War II, “You know, I make the rockets go up; where – where they come down is not my concern.”  (Gideon Kanner points out that this line was actually satire, not a moral refuge, on Gideon’s Trumpet.  Either way, the argument remains absurd.).

Second, the administration argued that the Commission should not be entitled to any compensation under the Takings Clause because the government’s decision to flood the Commission’s land was supported by broad consensus of the upstream property owners (the beneficiaries of the harmful policy).  Chief Justice Roberts made light of the argument, “so the choice is, there are 10 landowners downstream.  The question is which one you’re going to flood.  And you flood number 2, and there is a public process in which number 1 and 3 through 10 get to say, yeah, that sounds fine to me.”

Justice Sotomoayor stated, “It’s nice that you try to reach consensus” but “what difference does that make.”

The administration’s argument—which is frighteningly reminiscent of the famous saying that democracy without check and balances is “two wolves and a lamb voting on what to eat for lunch”— flies in the face of the Takings Clause, which is intended to protect against government actions that try to force “some people alone to bear public burdens, which in all fairness and justice, should be borne by the public as a whole.”  Armstrong v. United States (1960).

As Justice Scalia explained, “[T]he issue is who is going to pay for the wonderful benefit to these farmers.  Should it be everybody, so that the government pays, … or should it be this – this particular landowner who loses all his trees?”

That is the key question that should drive the Court’s decision in this case.

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