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Richard Epstein: Takings Law, Without a Theory

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By Richard A. Epstein

A Four-Part Saga The recent decision of the Supreme Court of the United States in Arkansas Game and Fish Commission v. United States represents a victory of sorts for the property rights movement. I have already provided an earlier analysis of the underlying issues in this case, which stresses the need to clarify the relationship between common law tort actions that are subject to the defense of sovereign immunity and government takings for which the government is obliged to provide just compensation. While the Court passed by that question in silence, it fortunately did give, the Arkansas Game and Fish Commission (AGFC) a second chance to make a case for compensation on remand, in a unanimous decision (Justice Kagan recused). That door had previously been slammed shut by a divided Federal Circuit, which had adopted a per se rule denying compensation in all cases in which the government invaded property by temporary flooding. (The Circuit Court decision had overturned an excellent decision in the Court of Federal Claims by Judge Charles Lettow.) But what should have been a clean victory for the Arkansas Game and Fish Commission (AGFC) has turned into a messy remand to an unfriendly Federal Circuit for further proceedings. Three chapters of this saga have now been completed. A fourth remains.

In the opening chapter of this extensive litigation, the AGFC brought a suit against the US for its flood-control operations in Missouri during the years 1993-2000. The U.S. Army Corps of Engineers (Corps) was keen to provide farmers in Missouri with a longer growing season, and did so by ordering timed releases from behind its Clearwater Dam. In order to slow up releases during the growing season, the Corps had to release large quantities of water thereafter. Eventually, these reached the AGFC's Dave Donaldson Black River Wildlife Management Area, located 115 miles down stream. The waters did not permanently remain there, but even after they receded, the accumulated moisture destroyed or degraded some 18 million board feet of timber located on some 23,000 acres to the tune of $5.7 million. The Court of Federal Claims accepted the AGFC's claim that the Takings Clause embraces the principle that destruction of property by flooding is the same as its occupation by the government.

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