Instant Analysis: Arkansas Game & Fish Commission v. United States

December 4th, 2012

The Court 8-0, per Justice Ginsburg, held that “Government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.”

One threshold question Steve raised is why the 5th Amendment applies to “private property” owned by the state, as the Takings Clause states “[N]or shall private property be taken for public use, without just compensation.” I think there is an easy answer, and an answer deeper in the thickets. The easy answer is that property owned by the state is private, in the sense that it is not abandoned land left in the commons. States own lots of land, which they can use for parks or other purposes, but it is still private, at least with respect to several sticks in the bundle. To some extent, they can exclude people (for example, by charging a fee to enter a park). They can alienate it (sell it to a private developer). Etc.

But, I think the deeper, more interesting issue is when you are talking about dual sovereigns–when the federal government is trying to take property of the state. In some respects, the state is acting like a private party would, at the mercy of the superior sovereign. Are there any cases about whether state governments could take federal property?

Anyway, back to the case. I shall read on.

This case considers when a temporary taking, such as temporary flooding, becomes “permanently continued.” Of course, temporary takings are looked at under Penn Central.

Ordinarily, this Court’s decisions confirm, if government action would qualify as a taking when permanently continued, temporary actions of the same character may also qualify as a taking . . .  the Federal Circuit held, 2 to 1, that compensation may be sought only when flooding is “a per- manent or inevitably recurring condition, rather than an inherently temporary situation.” 637 F. 3d 1366, 1378 (2011). We disagree and conclude that recurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability.

The Court continued its pattern of noting the nebulousness of regulatory takings (a topic that I found quite difficult to teach for that reason, thank you very much Justices). This is a pretty good summary, that I would share with my Property II students, but their exam was last night. Oh well. Good timing RBG.

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. True, we have drawn some bright lines, notably, the rule that a permanent physical occupation of property authorized by government is a taking. Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 426 (1982). So, too, is a regulation that permanently requires a property owner to sacrifice all economically beneficial uses of his or her land. Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1019 (1992). But aside from the cases attended by rules of this order, most takings claims turn on situation-specific factual inquiries. See Penn Central, 438 U. S., at 124. With this in mind, we turn to the question presented here—whether temporary flooding can ever give rise to a takings claim.

After streaming through the Court’s precedents on flooding, RBG fluidly summarized:

Ever since, we have rejected the argument that govern-ment action must be permanent to qualify as a taking. Once the government’s actions have worked a taking of property, “no subsequent action by the government can re- lieve it of the duty to provide compensation for the period during which the taking was effective.” . . . 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 may be 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.

RBG narrowly construed a precedent, from the dawn of the regulatory takings era (not too long after Penn Coal), to counter the government’s position.

We do not read so much into the word “permanent” as it appears in a nondispositive sentence in Sanguinetti. That case, we note, was decided in 1924, well before the World War II-era cases and First English, in which the Court first homed in on the matter of compensation for temporary takings. That time factor, we think, renders understandable the Court’s passing reference to permanence. If the Court indeed meant to express a general limitation on the Takings Clause, that limitation has been superseded by subsequent developments in our jurisprudence.

Just for good measure, she cites John Marshall’s line in Cohens v. Virginia about dicta.

We resist reading a single sentence unnecessary to the decision as having done so much work. In this regard, we recall Chief Justice Marshall’s sage observation that “general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.” Cohens v. Virginia, 6 Wheat. 264, 399 (1821).

Also, RBG adds her own canon of statutory interpretation: Read On. (not sure if Garner and Scalia got this in their tome):

The Government also asserts that the Court in Loretto interpreted Sanguinetti the same way the Federal Circuit did in this case. That assertion bears careful inspection. A section of the Court’s opinion in Loretto discussing permanent physical occupations parenthetically quotes Sanguinetti’s statement that flooding is a taking if it constitutes an “actual, permanent invasion of the land.” 458 U. S., at 428. But the first rule of case law as well as statutory interpretation is: Read on. Later in the Loretto opinion, the Court clarified that it scarcely intended to adopt a “flooding-is-different” rule by the obscure means of quoting parenthetically a fragment from a 1924 opinion. The Court distinguished permanent physical occupations from temporary invasions of property, expressly including flooding cases, and said that “temporary limitations are subject to a more complex balancing process to determine whether they are a taking.”

But then, RBG throws some cold water on the flooding argument.

To reject a categorical bar to temporary-flooding takings claims, however, is scarcely to credit all, or even many, such claims. It is of course in- cumbent on courts to weigh carefully the relevant factors and circumstances in each case, as instructed by our decisions

RBG also douses some of the “prophetic” fears of expanding what constitutes a regulatory taking.

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. Causby, 328 U. S., at 275 (Black, J., dissenting); Loretto, 458 U. S., at 455 (Blackmun, J., dissenting). 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, and today’s modest decision augurs no deluge [JB: Awesome pun!] of takings liability.

RBG notes that the government raised an argument, essentially, for the first time at oral arguments. The Court would not consider it.

At oral argument, the Government tendered a different justification for the Federal Circuit’s judgment, one not aired in the courts below, and barely hinted at in the brief the Government filed in this Court: Whether the damage is permanent or temporary, damage to downstream property, however foreseeable, is collateral or incidental; it is not aimed at any particular landowner and therefore does not qualify as an occupation compensable under the Takings Clause. Tr. of Oral Arg. 30–39; Brief for United States 26–27. “[M]indful that we are a court of review, not of first view,” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005), we express no opinion on the proposed upstream/downstream distinction and confine our opinion to the issue explored and decided by the Federal Circuit.

Chief Justice Roberts could not be reached for comments.

Also, the Court does not address the implications of Arkansas riparian law:

1 Arkansas water law is barely discussed in the parties’ briefs, see Brief for United States 43, but has been urged at length in a brief amicus curiae filed by Professors of Law Teaching in the Property Law and Water Rights Fields.

A scholars brief that was cited when the merit briefs ignored an issue!

So here’s the holding:

We rule today, simply and only, that governmentinduced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking.