This is the amicus brief of Owners' Counsel of America in Arkansas Game & Fish Comm'n v. United States, No. 11-597 (cert. granted Apr. 2, 2012), the case in which the Federal Circuit held that flooding caused by the Corps of Engineers was only temporary, and did not result in a compensable taking merely because it eventually stopped, and "at most created tort liablity."
The dissenting judge concluded that temporary flooding was no different in kind than more permanent flooding that occurs in other inverse condemnation cases, and regularly results in awards of compensation.
The OCA brief argues:
This case presents the court with an opportunity to bring a measure of long-absent clarity to one part of takings law. A physical invasion of property – even that which is deemed "temporary" – is a taking and triggers the Fifth Amendment’s requirement to pay just compensation. Thus, the government cannot avoid liability for a taking when it floods property simply by asserting that it did not intend for the invasion to be permanent. Temporal metaphysics are less important than the actual permanent damage and deprivation of use inflicted by an invasion.
When 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. The Federal Circuit, however, concluded otherwise and drew artificial and unenforceable lines between "temporary" flooding and "permanent" invasions, with the only delineation between them being the intent of government officials. This Court should reverse, and reaffirm the rule that any physical invasion of private property that results in a deprivation of the property owner’s use requires the payment of just compensation.
This brief makes a single point: the Federal Circuit’s per se rule of nonliability has it exactly backwards, and this Court should reaffirm the rule that all "direct and substantial" physical occupations, even if temporary, are takings. In those cases, the duration of the invasion is a factor in the calculation of just compensation, not whether a taking has occurred.
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