October 3rd, 2012 — By — In News & Events

Oral Arguments in SCOTUS Flooding Case Today: Does the Goverment Have a Duty to Pay Compensation For Damages Caused by Temporary Takings by Flooding?

Oral arguments have just begun in the Supreme Court case Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012).  The case concerns the temporary flooding by the Army Corps of Engineers (ACOE) of property owned by the State of Arkansas Game & Fish Commission (AGFC) and subsequent damage to the trees existing on the flooded land. The Court will decide whether the Federal government must pay compensation to property owner(s) for damages resulting from temporary flooding occurrences. (For more background on the case see the SCOTUSblog argument preview, Is Temporary Flooding Causing Permanent Damage A Taking? @ inversecondemnation.com and our previous post here; see also Gideon Kanner’s post here providing a history of takings jurisprudence and a little background on the use of “bullshit.”)

This case came before the Supreme Court following a Federal Circuit ruling that the flooding caused by the ACOE was only temporary, and despite the damage to the trees owned by AGFC, it was not a compensable taking simply because the flooding eventually stopped, and “at most created tort liablity.”  This ruling overturned a lower court’s finding that the Federal government did have a duty to pay upwards of $5 million for the damage caused by the ACOE flooding.

Owners’ Counsel of America filed an amicus brief in support of the property owner/petitioner.  The brief argues that “[w]hen property is damaged permanently, as were petitioner’s trees, there is no principled distinction between a physical invasion that is permanent and compensable, and an invasion that is claimed to be temporary and is not.”

Unfortunately we were not able to be in D.C. to attend the arguments today but we will be following the analysis of the arguments and hope to hear them replayed later this week.

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