Today’s Oral Argument in Arkansas Game and Fish Commission v. United States

The transcript of today’s oral argument in the important Supreme Court takings case of Arkansas Game and Fish Commission v. United States is now available here. I discussed the issues in the case in this post.

Legal reporter Lawrence Hurley of Greenwire interprets the oral argument as going badly for the federal government:

A majority of Supreme Court justices appeared sympathetic today to the Arkansas Game and Fish Commission’s argument that it is owed compensation by the Army Corps of Engineers for timber damage caused by flooding.

The commission claims it deserves compensation under the takings clause of the Fifth Amendment for a loss of revenue in timber sales in the Black River Wildlife Management Area in the northeast part of the state.

The damage to the timber was caused by the Army Corps’ management of the Clearwater Dam upriver, the state maintains. Between 1993 and 2000, the Army Corps tinkered with the water flow from the dam, which the commission said led to flooding that eventually killed many mature oak trees at the Black River site….

The Supreme Court justices appeared hostile to the federal government’s position — espoused by Deputy Solicitor General Edwin Kneedler — that no landowners downstream of a government-operated dam can seek compensation in part because they should be aware of the inherent risks of owning land on a floodplain. The federal government would not “have got into the flood control business” if it was going to face litigation over its management of projects, Kneedler said….

Some of the justices appeared particularly concerned with Kneedler’s contention that landowners downstream could never make a claim even though a property owner with land next to a dam reservoir could potentially seek compensation if the water regularly floods his property.

“Your position seems to be if it’s downstream, it’s not the government,” Justice Anthony Kennedy told Kneedler.

Chief Justice John Roberts seemed to share that concern in pointing out evidence in the record that the Army Corps was aware that the Black River site would be flooded if there were deviations in the water release plan.

I largely agree with Hurley’s analysis of the argument, though with the usual caveat that oral arguments don’t perfectly predict the justices’ ultimate votes. All four of the conservative justices who asked questions appeared to be sympathetic to the property owners’ position. Justice Clarence Thomas (who almost never asks questions) maintained his silence. But he is likely a safe vote for the Commission, based on his past strong support for property rights. Only Justice Breyer seemed to be clearly leaning towards the federal government. Justices Ginsburg and Sotomayor asked some tough questions of both sides, though I suspect they will ultimately side with the federal government. Elena Kagan recused herself, probably because of her earlier involvement in this case when she was Solicitor General.

Even some of the liberal justices seemed skeptical about the government’s remarkable argument that flooding caused by a government-built dam can never be considered a taking of downstream property owners’ land, even if the flooding is permanent. Deputy Solicitor General Edwin Kneedler claimed that such flooding was an inevitable result of operating dams in such areas in the first place, and was justified by the great benefits created by the dams.

But none of this proves that there was no taking. The fact that flooding is inevitable once the government builds and operates a dam does not mean that the resulting invasion of downstream owners’ property is not a taking. Intrusions on property owners’ land are often an inevitable result of building roads in populated areas, including roads that create major public benefits. But that doesn’t mean that such construction is not a taking. Likewise, even if the dams create enormous benefits that far outstrip their costs, that too doesn’t prove there was no taking. As the Supreme Court famously stated in Armstrong v. United States (1960), “[t]he Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” That point applies to destruction of private property caused by dams just as much as that created by roads. Both roads and dams may create public benefits big enough to justify the taking of private property in order to realize them. But the Takings Clause requires the government to pay compensation to the owners when it does so, so as not to “forc[e]… some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” As Justice Scalia put it in the oral argument, “the issue is who is going to pay for the wonderful benefit…. Should it be everybody, so that the government pays, and all of us pay through taxes, or should it be… this particular sorry landowner who happens to lose all his trees?”

Kneedler was also unpersuasive in suggesting that there can’t be a taking in such cases because owners of riparian property know that flooding is a common risk near large rivers. Flooding caused by the government is still different from natural flooding, and is not an inherent “natural” risk of owning property near a river. Moreover, property owners in dense urban areas know that government road-building that displaces private property owners is a common occurrence in such areas. But that doesn’t mean that such displacement doesn’t qualify as a taking.

Some of the justices in the oral argument raised the question of exactly how much damage the Fish and Game Commission’s land actually suffered from the flooding caused by the Army Corps of Engineers. They note that it may be hard to separate that damage from damage caused by naturally occurring floods. Even if this is true, it’s only relevant to the question of how much compensation should be paid, not the issue of whether any compensation at all is due. A taking could have occurred even if the Game and Fish Commission overestimated the amount of damage it inflicted.

UPDATE: Damon Root, who attended the oral argument, had a similar impression of the justices’ leanings.