Among the cases up for consideration at the Supreme Court’s conference on Friday is Arkansas Game & Fish Commission v. United States, which seeks review of an interesting takings case out of the U.S. Court of Appeals for the Federal Circuit. In short, the case concerns whether the temporary flooding of property can constitute a taking for which compensation is required under the Fifth Amendment. A divided panel of the Federal Circuit said no, holding that flooding can only effect a taking if it constitutes “an actual permanent invasion of the land, amounting to an appropriation of and not merely an injury to the property.” As the petitioners and various amici notes, and Judge Newman argued in dissent, this is a difficult holding to square with prior Court decisions that temporary takings can be compensable.
Environmentalist groups are not usually very sympathetic to takings claims. Most such groups adamantly oppose compensation for regulatory takings, often out of fear that a compensation requirement would make environmental regulation too costly. Environmentalists have also been late to consider the potential environmental consequences of eminent domain. This case, however, presents a clear example of how enabling the federal government to evade the Fifth Amendment’s compensation requirement can facilitate environmental harm, and it does so without raising the sorts of regulatory takings claims that typically give environmentalists such fits.
The substantive argument in this case is that the flooding of land is the sort of physical occupation that can constitute a taking, even if it is only temporary. The land at issue in this case is a wildlife management area. The repeated flooding of this land by the U.S. Army Corps of Engineers has caused substantial damage and destroyed valuable wildlife habitat. Were the flooding recognized as a taking — albeit a temporary taking — the Army Corps might be less quick to flood such lands in pursuit of other policy goals. Undeveloped land, such as wildlife habitat, is already more vulnerable to governmental expropriation than is more developed land because it’s cheaper. But if the government does not have to pay for the temporary occupation of such land at all, it’s cheaper still. The Court does not often agree to hear takings cases from the Federal Circuit, but given all the patent cases its heard in the past few years, perhaps it’s time for a slight change of pace.