US Supreme Court Hears Arguments On Temporary Takings

December 11, 2012, by Meyers Nave

On October 3, 2012, the Supreme Court of the United States heard oral arguments in a case whose outcome may change federal takings and the just compensation owed property owners subjected to a temporary physical taking by the government.  In Arkansas Fish & Game Commission v. United States (No. 11-597), the court is considering whether the temporary but reoccurring downstream flooding events, caused from periodic dam releases by the Army Corps of Engineers over a period of six years, constitutes a “taking” of property warranting payment of just compensation.  

The releases permanently destroyed the Commission’s timber resources and compromised the land’s usage as an important wildlife habitat.  The lower court awarded the Commission $5.6 million in compensation.  The Federal Circuit Court reversed and essentially arrived at a per se test that forgoes the need for just compensation in temporary physical occupations.  The Circuit Court’s per se rule found that a temporary taking occurs only when the flooding is inevitably recurring.  Appellant and amicus briefs argue that prior case law points to compensatory payments from the government for a variety of temporary physical takings and that a balancing test should be employed by the courts that account for both the physical impact caused by the occupation as well as the occupation’s duration. 

A decision is expected in the upcoming weeks.   

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