I'm a bit late on this issue. Ignorance is...well...dangerous.
Friend and colleague Jerry Sehlke sent me an email this morning that he received from LSI soliciting his participation in a telephone seminar to be held on 25 January 2013. Here is how it began:
On December 4, 2012, the U.S. Supreme Court issued a unanimous opinion in Arkansas Game & Fish Commission v. United States, holding that when the federal government floods property, even temporarily, the Fifth Amendment may require the government to pay just compensation to the landowner.
The Court's decision eliminates a carve-out from takings liability for government actions resulting in episodic or temporary flooding of land: "No decision of [the Supreme Court] authorizes a blanket temporary-flooding exception" to takings jurisprudence. This means that landowners are now eligible to establish that their land has been inversely condemned by government actions resulting in temporary flooding, under the same standards as any other takings plaintiff.
Consequently, water management actions that could result in flooding should be carefully scrutinized to take preventative steps to avoid flooding and reduce potential takings liability. Likewise, attorneys whose clients experience episodic or periodic flooding of their land should carefully evaluate whether a takings claim is a possibility.
In this one-hour TeleBriefing, three experienced litigators -- including the attorney who argued in the Supreme Court for the Arkansas Game & Fish Commission -- will discuss how this case changes the rules for inverse condemnations involving flooding. Topics will include:
- The crucial distinction between a temporary flooding and periodic floodings
- Whether the intent of the flooding entity matters in an inverse condemnation case
- Legal standards to which all flooding actions are now subject
Here is the call's agenda.
I have to admit I was unaware of this case.
Jerry wondered whether this decision might hamstring the USACE's efforts at flood control, especially when the decision is made to flood one part of the system to reduce damage to another part.
One colleague replied:
As to the case - I don't think it will have much application to the Corps, especially in the Mississippi where any deliberate flooding has been adjudicated thru leases, purchases or tradeoffs (people in backwater areas get flooded when the backwater levee, which is designed to overtop before the main line levees, overtops. Before the backwater levees were built they flooded more often - and agreed that some protection was better than none.)
Case law has supported the idea that if a structure reduced flooding, to be a taking, the flooding caused by the structure had to be worse than would have occurred before the structure.
Here is Prof. Noah Hall's (Great Lakes Law blog) take:
The U.S. Supreme Court just issued a unanimous decision in Arkansas Game and Fish Commission v. United States, allowing a landowner to proceed with a takings claim for compensation from temporary flooding caused by the federal government’s operation of a dam. The decision reversed a 2011 Federal Circuit Court of Appeals decision that would have only allowed takings claims for “permanent or inevitably recurring” flooding.
However, the Court’s decision allowing a landowner’s takings claim for temporary flooding to proceed as a matter of federal takings law is not the end of the case. The more difficult and fundamental issue is whether, as a matter of state property law, ownership of riparian land in Arkansas comes with some expectation of temporary flooding. Justice Ginsburg wrote: “The determination whether a taking has occurred includes consideration of the property owner’s distinct investment backed expectations, a matter often informed by the law in force in the State in which the property is located.”
You can read the rest of Prof. Hall's post, in which he addresses relevant Arkansas water law and an amicus curiae brief filed by himself and two colleagues.
Fascinating. More stuff to ponder...
"A judge is a law student who marks his own examination papers." - H. L. Mencken
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