This morning, the U.S. Supreme Court decided to take review of the important property rights case, Arkansas Game & Fish Commission v. United States. This case asks whether government actions that result in intermittent physical invasion and occupation of another person’s property over a period of 8 years give rise to a claim for damages for a temporary taking. But more importantly, the case seeks to confirm that each property owner has a right to recover just compensation for a taking, regardless of the government’s intent or purpose when it took the property.
The Arkansas Game & Fish Commission (AGFC) owns and operates 23,000 acres of forest and recreational land located approximately115 miles downstream from Clearwater Dam in Missouri. Water is released from the dam in quantities governed by a pre-approved “management plan” which is intended to take into consideration the potential impacts on agricultural, recreational, and other effects downstream.
Between 1993 and 2000, the federal government decided to release more water than was authorized under the plan. AGFC repeatedly objected that these excessive releases flooded its forest lands during the critical growing seasons and was damaging large portions of the mature forests. The federal government, realizing the harm it caused, stopped flooding AGFC’s land in 2001. By then, however, the forest lands were severely damaged, so AGFC sued the government, claiming that the federal government’s actions effected a temporary taking and seeking compensation under the Fifth Amendment.
The federal government argued that all of the flooding that occurred during the 8-year period was just a series of unfortunate accidents arising from its negligence in tampering with the water flow policies. The upshot of this argument being that the government’s physical invasion and occupation of AGCF’s land did not rise to the level of a taking and – conveniently enough – the federal government was immune from liability for negligence in administering its water management policies. The Court of Federal Claims rejected the federal government’s arguments, holding that its actions effected a temporary physical invasion of AGCF’s property and awarding $5.8 million to compensate the state for the value of lost timber and reforestation costs.
The Federal Circuit Court of Appeals reversed that decision, holding that the flooding of private land can never be a taking unless the government intended that the flooding become a permanent or inevitably recurring condition on the affected property. To determine this, the Federal Circuit concluded that a court shouldn’t look at the period of time the property is inundated or the actual damage suffered; instead, courts must focus on the character of the policy behind the intrusion. According to the Federal Circuit, a temporary taking could not have occurred in this case because each deviation from the water management plan constituted an ad hoc or temporary policy. So AGFC had no constitutional remedy.
The government’s intent that its actions be ad hoc or temporary is not determinative of whether a taking has occurred
In December 2011, PLF and the Cato Institute filed an amicus brief asking the U.S. Supreme Court to grant certiorari in this case in order to reverse the Federal Circuit’s decision and to bring an end to a troubling trend among the lower courts of reading an intent requirement into the Fifth Amendment. The brief explains that an invasion of land by flooding is no different from an invasion of land by any other means. The government’s intent when it physically invades and occupies private property should have no bearing on whether a Fifth Amendment remedy exists when that taking has, in fact, occurred. The only relevant inquiry should be whether the government caused permanent damage and, if so, how much. The Federal Circuit’s decision departed from well-established U.S. Supreme Court precedents by creating a new rule — that, so long as it might be deemed an “ad hoc or temporary” policy, no government flooding can be remedied under the Fifth Amendment. Because the government can almost always claim that it did not intend its actions to permanently deprive a property owner of his or her land, the Federal Circuit’s rule only operates to circumvent the right just compensation when a taking has occurred.
We are excited that the U.S. Supreme Court has agreed to review this case, and will post more information as the case develops.
PLF’s and Cato’s amicus brief, as well as all of the other briefs and the lower court’s decision, can be found here.