Tomorrow’s Important Takings Case Before the Supreme Court

Although it may be lost in the shuffle of more highly publicized cases, tomorrow the Supreme Court will be hearing oral arguments in Arkansas Game and Fish Commission v. United States, the most important regulatory takings case in a long time. In this case, the US Army Corps of Engineers inflicted extensive damage on a 23,000 acre Wildlife Management Area owned by the Arkansas Game and Fish Commission through a series of recurring floods caused by Corps dam operations. The trial court ruled that this was a “taking” of property requiring “just compensation” under the Fifth Amendment and awarded over $5 million in damages to the Game and Fish Commission. But the Federal Circuit Court of Appeals reversed, concluding it was not a taking because the flooding was only temporary and the Corps did not intend to inflict permanent flooding or damage.

The case raises two important issues: whether permanent destruction caused by “temporary” recurring flooding can qualify as a taking under the Fifth Amendment, and whether a taking can occur even if the government did not intend to cause the resulting destruction (the federal government argues that there was no taking because the Corps of Engineers did not intend to permanently flood or damage the wildlife area). To my mind, the property owner should prevail on both issues. If the government destroys private property to advance some public policy goal, it does not matter whether it does so by permanent flooding or by a temporary flood. What matters is the destruction of the owner’s rights, not the means by which it was done. In both cases, the government took away the owners’ rights, and in both cases the destruction is permanent, even if the means by which it was achieved was not. As the Court explained in a famous 1871 case:

It would be a very curious and unsatisfactory result if in construing a provision of constitutional law always understood to have been adopted for protection and security to the rights of the individual as against the government, and which has received the commendation of jurists, statesmen, and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authority for invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors.

In the famous 1946 case of United States v. Causby, the Court ruled (correctly, in my view) that a taking had occurred when the government disturbed an owner’s property rights by recurring overflights by military aircraft. That was true even though the overflights were not permanent (the government’s lease on the property from which the planes flew was scheduled to run out in 1947) and the amount of damage was probably far less than that inflicted in the current case. I don’t see any meaningful distinction between damage inflicted by recurring overflights and that inflicted by recurring floods.

As for the Corps’ intentions, they should be irrelevant. What matters under the Takings Clause is whether the government actually took private property, not whether it intended to do so.

There is, however, one perplexing aspect of the case that potentially cuts in favor of the federal government, even though it does not appear to have been raised by the parties. The Fifth Amendment forbids the taking of “private property” without “just compensation” (emphasis added). Obviously, the land at issue here is owned by the Game and Fish Commission, which is a state government agency. So the Takings Clause should not apply to it.

I assume there is some technical legal reason or relevant precedent why both sides in this litigation have seen fit to treat the Commission’s property as if it were private property for constitutional purposes. Because of other commitments, I haven’t had the opportunity to give this case as much attention as I would have otherwise; so it’s possible that I’m missing something here. I have asked several experts who have followed this case more closely, as to what it might be. But so far, no one has given me a good answer. If you are a property law or constitutional law specialist and you think you have a good answer to this question, please let me know!

UPDATE: For readers who may not know, I should note that the term “regulatory taking” is often used to encompass all government actions that constitute a taking without formally resorting to the condemnation process, whether they actually qualify as “regulations” or not. For example, there was no regulation (in the narrow sense of the term) at issue in the Causby case. However, to make things more confusing, courts also sometimes distinguish between “physical takings” (takings, whether caused by a regulation or not, where there is a “physical invasion” of the owners’ property), and “regulatory takings” (defined here as regulatory restrictions on the use of property that do not involve a physical invasion). Proving that a physical invasion qualifies as a taking is generally easier than proving that a regulation that does not include a physical invasion does so. I have therefore removed “regulatory” from the title of this post in order to avoid any confusion on this point. In any event, what matters here is whether a taking has occurred, not whether it was a “regulatory” taking or some other kind of taking. And, in this case, there pretty clearly was a physical invasion, since the Corps did flood the Commission’s land repeatedly.

UPDATE #2: A commenter points out that the issue of why the Takings CLause applies to public property is briefly addressed in a footnote on Pg. 24 of the Game and Fish Commission’s brief:

Just as it guarantees protection of private property of citizens, the Takings Clause protects the property of States and their
subdivisions from appropriation by the Federal Government without “just compensation.” United States v. Carmack, 329 U.S.
230, 241-42 (1946); cf. California v. United States, 395 F.2d 261, 263-64 & n.4-5 (9th Cir. 1968) (holding that the Fifth Amendment protects property from appropriation without just compensation “even when the property has been dedicated by the State to public use”).

A closer look at United States v. Carmack shows that it does indeed briefly state that the federal government must pay compensation when it condemns state government property:

The Fifth Amendment to the Constitution says “nor shall private property be taken for public use, without just compensation.” This is a tacit recognition of a preexisting power to take private property for public use, rather than a grant of new power. It imposes on the Federal Government the obligation to pay just compensation when it takes another’s property for public use in accordance with the federal sovereign power to appropriate it. Accordingly, when the Federal Government thus takes for a federal public use the independently held and controlled property of a state or of a local subdivision, the Federal Government recognizes its obligation to pay just compensation for it, and it is conceded in this case that the Federal Government must pay must compensation for the land condemned.

Carmack was mainly concerned with the question of whether the federal government could use eminent domain against state property devoted to a “public use” at all, and only briefly discusses the compensation issue, which the feds had conceded in any case. What it does say isn’t entirely persuasive. Even if the power to take private property for public use is “preexisting,” the requirement of just compensation comes from the Fifth Amendment, and that amendment seems to apply it only to takings of private property. That said, Carmack is at least a relevant pronouncement by the Supreme Court, and the federal government doesn’t seem to be contesting the issue in this case either. Moreover, a little research reveals that the 1893 case of City of St. Louis v. Western Union Tel. Co. 148 U.S. 92, 101 (1893) addressed the issue more clearly:

No one would suppose that a franchise from the federal government to a corporation, state or national, to construct interstate roads or lines of travel, transportation, or communication, would authorize it to enter upon the private property of an individual, and appropriate it without compensation. No matter how broad and comprehensive might be the terms in which the franchise was granted, it would be confessedly subordinate to the right of the individual not to be deprived of his property without just compensation. And the principle is the same when, under the grant of a franchise from the national government, a corporation assumes to enter upon property of a public nature belonging to a state. It would not be claimed, for instance, that under a franchise from congress to construct and operate an interstate railroad the grantee thereof could enter upon the statehouse grounds of the state, and construct its depot there, without paying the value of the property thus appropriated. Although the statehouse grounds be property devoted to public uses, it is property devoted to the public uses of the state, and property whose ownership and control is in the state, and it is not within the competency of the national government to dispossess the state of such control and use, or appropriate the same to its own benefit, or the benefit of any of its corporations or grantees, without suitable compensation to the state.

Like Carmack, Western Union does not really explain why the just compensation requirement applies to takings of state government property, despite the clear text of the Fifth Amendment, which says it only applies to “private property.” The Court seems to assume that it’s just obvious that if the United States can’t take private property without compensation, it can’t take state property either. But it is a longstanding precedent, and no one seems to be challenging it.