October 2012

The New York Times editorial page has weighed in on Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012), the takings case argued earlier this week in the U.S. Supreme Court.

And, no surprise, in When Flooding Is Not a Taking, the great beneficiary of eminent domain abuse comes out on the “no compensation” side when the government purposefully floods property because — get this — the floodwaters eventually recede: 

The takings clause of the Constitution’s Fifth Amendment ensures that private property cannot be taken for public use without fair compensation. A classic example is the government’s exercise of eminent domain power to build a highway; if the road cuts through private land, the government owes the owners payment equal to fair market value. That principle applies when the government builds a dam, and water and silt overflow land, permanently destroying or…

Continue Reading Does The NY Times Know That Most Floodwaters Eventually Recede (Or Might?)

Here’s the transcript of Wednesday’s argument in Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012).

BLUF (Bottom Line Up Front): we’re predicting the property owner win with a minimum six-Justice majority (perhaps more), with a narrowly drawn opinion vacating the Federal Circuit’s conclusion that temporary flooding can never be a taking. Whether the Court adopts a new test to determine whether a taking occured when the government purposefully floods land, however, is up in the air.

The petitioner was represented by James Goodhart, who led off the argument by attacking the Federal Circuit’s conclusion, arguing for a rule that a taking occurs whenever a “direct physical invasion” results in a “substantial intrusion” on a property interest, and that the duration of the invasion is not relevant. That’s a restatement of the existing per se rule that any physical invasion that…

Continue Reading Of Picnics And Floods: Oral Arguments In SCOTUS Takings Case, Part I

This just in: our Pacific Legal Foundation colleagues have informed us that the U.S. Supreme Court has agreed to review another takings case.

The questions presented are:

1. Whether the government can be held liable for a taking when it refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a permit condition that, if applied, would violate the essential nexus and rough proportionality tests set out in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994); and

2. Whether the nexus and proportionality tests set out in Nollan and Dolan apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use.

The case is Koontz v. St. Johns River Water…

Continue Reading SCOTUS Grants Cert: Does Nollan/Dolan Apply To Cash Exactions?

Here’s the transcript of Wednesday’s argument in Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012).

BLUF (Bottom Line Up Front): we’re predicting the property owner win with a minimum six-Justice majority (perhaps more), with a narrowly drawn opinion vacating the Federal Circuit’s conclusion that temporary flooding can never be a taking. Whether the Court adopts a new test to determine whether a taking occured when the government purposefully floods land, however, is up in the air.

The petitioner was represented by James Goodheart, who led off the argument by attacking the Federal Circuit’s conclusion, arguing for a rule that a taking occurs whenever a “direct physical invasion” results in a “substantial intrusion” on a property interest, and that the duration of the invasion is not relevant. That’s a restatement of the existing per se rule that any physical invasion that…

Continue Reading SG Doubles Down: Transcript Of Arguments In SCOTUS Flood Takings Case, Part II

Later today the Supreme Court will hear oral arguments in Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012), to review the Federal Circuit’s conclusion that  flooding caused by the Corps of Engineers was only temporary, and even thought it destroyed trees owned by Arkansas, it was not a compensable taking merely because the flooding eventually stopped, and “at most created tort liablity.” The dissenting judge concluded that temporary flooding was no different in kind than more permanent flooding that occurs in other inverse condemnation cases and regularly results in awards of compensation. The Federal Circuit’s opinion is here.

We filed an amicus brief in the case supporting the property owner/petitioner, which argues that as long as the water releases by the Corps “directly and substantially” resulted in damage to petitioner’s trees it’s a taking for which just compensation is required and…

Continue Reading SCOTUS Arguments In Flood Takings Case