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
There’s still time to join us later this week at William & Mary Law School in Williamsburg, Virginia for the 2012 Brigham-Kanner Property Rights Conference, and the award of the B-K Prize to University of Michigan lawprof James Krier for his lifetime contributions to property law scholarship.
The Conference includes a day-long series of discussions on property rights, featuring leading scholars and practitioners. Topics include “The Impact of a Leading Property Scholar,” “The Judiciary’s Role in Shaping Constitutionally Protected Property,” “Property Rights in Times of Economic Crisis,” and “Property’s Moral Dimension.” The day will wrap with a roundtable discussion, “How Fundamental are Property Rights?” The complete agenda is available here.
I will be speaking on the panel about “Property Rights in Times of Economic Crisis,” discussing why property rights are even more important when times are tight.
Register on-line here. If you can’t join us, I will…
Continue Reading 2012 Brigham-Kanner Property Rights Conference
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…
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…
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: