Court of Federal Claims | Federal Circuit

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We love any opinion that begins with “[t]his case’s story started in 1942…” A typical long-fact-pattern takings case, perhaps? Well, not quite. This case, which we’ve been meaning to post for a while, deals with who is entitled to intervene in a takings case.

In Wolfsen Land & Cattle Co. v. United States, No 2011-5113 (Sep. 21, 2012), the U.S. Court of Appeals for the Federal Circuit affirmed the Court of Federal Claims’ denial of a motion to intervene by an environmental organization in a takings case. In an earlier separate case, the organization and others had sued the federal government over the operation of a dam. To settle that case, the government and the organizaitons entered into an agreement that “obliged the government to release water from the dam for the purpose of restoring and maintaining fish populations downstream[.]” Slip op. at 4.

As a result of the…

Continue Reading Federal Circuit: Federal Gov’t Adequately Represents Enviros’ Rights

In July, we posted the opening brief in Ladd v. United States, the case in which the Court of Federal claims dismissed the property owners’ Fifth Amendment takings claim stemming from a rail conversion. The CFC held that the claim was filed past the six-year Tucker Act statute of limitations even though the government did not provide the owners notice of the action that they assert was a taking.

The appeal, now pending in the Federal Circuit, asks whether the federal government can take an owner’s property without providing any notice to the landowner, and avoid its constitutional obligation to pay compensation because the statute of limitations began to run when the government issued the order, not when the landowner had notice of the government’s order taking their property? Our colleague Thor Hearne has sent along the recently-filed Reply Brief. which argues:

The government defends the CFC’s dismissal…

Continue Reading Reply Brief In Fed Cir Rails-to-Trails Appeal: Statute Of Limitations Doesn’t Start To Run Until Gov’t Gives Notice Of The Taking

The Oyez Project has posted the recording in 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.

Check it out here. We posted our summary of the petitioner’s arguments here, and will be posting our thoughts on the government’s arguments shortly. But in the meantime, listen along. Continue Reading Oral Argument Recording In SCOTUS Flood Takings Case

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

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

If you understand that headline, congratulations: you are officially a takings geek.

Here’s another piece worth reading, to prepare yourself for next week’s oral arguments in Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012): Is the federal government shifting the focus in Arkansas Game & Fish Commission? by my PLF colleague Brian T. Hodges.

Somewhat surprisingly, the central question in this case—whether a physical invasion of private property must continue permanently to take property within the meaning of the Takings Clause—seems to be the least controversial of the questions posed by the parties’ merits briefs.  The question that is drawing the most attention is whether a temporary flood invasion should be treated like all other temporary physical takings (for which the Court has already established a test as set out in the PLF/Cato Institute/ALF amicus brief), or whether the Court should…

Continue Reading Shifting Gears In SCOTUS Takings Case: Are Floods Treated As Physical Invasions, Or Analyzed Under Penn Central?

Greenwire’s Lawrence Hurley has posted his preview of next week’s Supreme Court arguments in Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012).

In Ark. girds for showdown with Army Corps over forest flooding, Hurley writes:

The Supreme Court’s job is to decide whether temporary flooding of the type that occurred at the Black River site can constitute a “taking,” which is generally viewed as a permanent loss of property.

Or as Ilya Shapiro, a legal scholar at the libertarian Cato Institute in Washington, rephrased the question: “When a tree falls in a forest due to temporary flooding, does it make a sound for which you can recover under the takings clause?”

The story details some of the personalities on the property owner side, and is worth reading. Continue Reading Greenwire Previews SCOTUS Takings Case

Here are links to worthwhile reads, all with a takings flavor:

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Continue Reading Takings Tuesday