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

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Continue Reading Takings Tuesday

Here’s the property owner/petitioner’s Reply Brief in Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012), the Supreme Court takings case scheduled to be argued on October 3, 2012.

The Federal Circuit held that flooding caused by the Corps was only temporary that destroyed G&F’s trees did not result in a compensable taking merely because the flooding it 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.

The Reply Brief responds to the federal government’s brief, and argues: 

The Commission seeks to apply the physical takings analysis, not a regulatory analysis like the Penn Central framework, that this Court established in flooding decisions like Pumpelly and…

Continue Reading Property Owner’s Reply Brief In Arkansas Game & Fish Comm’n: Flooding Causing Destruction Is Physical, Not Regulatory Taking

The Legal Information Institute at Cornell Law School has published its preview of Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012), the takings case set to be argued on October 3, 2012.

Petitioner, the Arkansas Game and Fish Commission (the “Commission”) sued Respondent, the United States, for a violation of the Takings Clause of the Fifth Amendment, which compels the government to compensate parties when the government physically seizes property. Specifically, the Commission argues that the United States Army Corps of Engineers (the “Corps”) permanently destroyed trees in a bottomland hardwood forest in Arkansas by intermittently flooding the forest for six years. The United States asserts that the actions of the Corps did not constitute a taking because the Corps did not oust the Commission of possession of the forest, and only a continuous invasion qualifies as a physical taking. The Supreme…

Continue Reading A Concise Preview Of The Arguments In Arkansas Game: Flooding & Takings

Those of you who attended the recent CLE session at the ABA Annual Meeting about Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012) may recall that Professor John Echeverria, the well-known environmental lawprof, said he was writing a brief in the case supporting the government’s arguments, but was looking for a “client.” Well, it looks like he found one: today, the International Municipal Lawyers Association filed this amicus brief in support of the respondent.

In Arkansas Game, the Federal Circuit held that flooding caused by the Corps of Engineers was only temporary, and did not result in a compensable taking merely because it 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 …

Continue Reading IMLA Amicus Brief In SCOTUS Flood Takings Case: This Is Not An “Environmental” Case

Check this out. A report from the Maui News that “Environmental court would be perfect fit here – judge.” Apparently, there is an effort to get the Judiciary or the Legislature to form another court with specialized jurisdiction, either formally like the Family Courts, or more likely on a less formalized basis like the “Drug Courts” that the circuit courts convene.

And who is recommending the formation of such a court? Why a judge from just such a court in Memphis, Tennessee:

“I’ve learned over the years that if you get them by the wallet, their hearts and minds follow,” Potter said to about 100 people at the Maui Arts & Cultural Center.

Potter said that an environmental court here is a perfect fit – and long overdue. There’s just so much to protect and balance in this delicate paradise, he said.

“The environment is everything here. It’s…

Continue Reading Does Hawaii Need An “Environmental Court?” – Doesn’t It Already Have One?

Here’s the federal government’s merits brief in Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012), the case in which the Federal Circuit held that flooding caused by the Corps of Engineers was only temporary, and did not result in a compensable taking merely because it 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.

As you might expect, the brief phrases the Question Presented somewhat differently than the property owner/petitioner’s brief:

The Court of Federal Claims found that during several years in the 1990s, temporary and irregular changes in water releases from a flood-control dam operated by the United States Army Corps of Engineers marginally…

Continue Reading Fed Govt’s Brief: “Temporary And Irregular Inundation Of Wetlands” (Read: Flooding) Is Not A Taking

When a Hawaii Supreme Court opinion starts off like this one, waxing poetic about “Na Wai Eha, or ‘the four great waters of Maui,'” you don’t need to read the remaining 88 pages to know what the inevitable result will be: the Water Commission got it wrong, again.

That’s the end result of the unanimous opinion in In re Iao Ground Water Management Area, No. SCAP 30603 (Aug. 15, 2012). Here’s the court’s own summary of its latest pronouncement on water law, including “interim instream flow standards,” customary and traditional Native Hawaiian practices, and more:

As explained below, the court holds that it has jurisdiction in the instant case, and takes this opportunity to expand upon the jurisdictional analysis from In re Water Use Permit Applications “Waiâhole I”, 94 Hawai’i 97, 9 P.3d 409, (2000). In reviewing Hui/MTF’s and OHA’s points of error, the court concludes that…

Continue Reading HAWSCT’s Latest Water Law Decision: Water Commission Gets It Wrong (Yet Again)

This past week was the ABA Annual Meeting in Chicago. These things can often be endurance contests where you’re rushing from one meeting to another (is this the Executive Committee meeting or the Council meeting?), and it’s often hard to tell the players without a scorecard.

Sprinkled among these unexciting-but-productive sessions are the real meat of the Annual Meeting, the CLE sessions. Some are interesting and fun (but pretty useless as CLE). Others are timely. Some are just plain weird. But never let it be said that the State and Local Government Law Section (the one that we are active in) doesn’t put on relevant programming: two of the featured CLE’s this past week were of particular interest to our readers, one about eminent domain, and the other about the takings case currently pending before the U.S. Supreme Court (which will be argued on October 3, 2012).…

Continue Reading Summary Of Flood Takings CLE – Lawprofs And Lawyers Discuss Pending SCOTUS Case

We are at the ABA Annual meeting this week, so don’t have a lot of time to keep up a long-distance practice and write up comprehensive blog posts, so we’re going to keep it short.

Here’s the latest takings decision from the Federal Circuit in a case we’ve been following, Estate of Hage v. United States, No. 2011-5001 (Fed. Cir. July 26, 2012). The property owners filed their case in 1991 in the Court of Federal Claims seeking compensation for the federal government’s taking of water rights in Nevada. In 2008, the CFC ruled in favor of the property owners, but the Federal Circuit reversed on Williamson County grounds because the case wasn’t administratively ripe. The federal agency, you see, has not reached a final decision on what the property owners might do with the land, and just might issue a permit (even if other similar permit applications…

Continue Reading Federal Circuit: 22-Year Old Takings Case In Which The Landowner Is Already Dead Is Not Ripe