Stephen Hawking, floods and takings law

We shall return to the meeting with Judge Lipez anon, but a Supreme Court decision came out on takings law, and so we must comment.  Arkansas Game and Fish Commission v. U.S., Docket No. 11-597 [].

The holding (in a unanimous – except for missing Justice Kagan - decision by Justice Ginsberg) favors property rights.  It rejects the Federal Circuit's position that there could be no taking.  The Court's reasoning, however, includes a few points, particularly in its instruction for remand, that could give property rights folks heartburn.  Put simply, the decision shows a merging of the taking test for physical takings with the test for regulatory takings, at least when the taking is temporary.  And any time one injects regulatory taking principles into physical takings analysis, the test dilutes.

First, the facts.  The U.S. built a dam in 1948.  The Commission owns the land along the river.  From 1993 to 2000, to increase the growing season for farmers, the Army Corps of Engineering released water in a way that flooded the Commission's land during the tree-growing season.  The flooding caused repeated and significant destruction of timber and a substantial change in the character of the terrain, necessitating costly reclamation measures.  The Corps stopped the flooding in 2001.

Following a trial, the Court of Federal Claims found a compensable temporary taking.  The Federal Circuit reversed, citing snippets of language from two old (1924 and 1917) decisions that suggested that flooding isn't compensable unless "permanent or inevitably recurring."

The holding by the Supreme Court is nope, the flooding doesn't have to be permanent or inevitably recurring.  The Court rejects the Federal Circuit's reliance on the language snippets, and cites more recent decisions recognizing that temporary takings without compensation violate the takings clause.  For example, when the government had to seize factories or other property in World War II, even though it eventually gave it back, it had to pay for the temporary taking.  So there's some nice language here about how temporary takings are takings, too. 

So what should give a property rights proponent pause about this decision?  It doesn't appear to recognize a distinction in jurisprudence between physical and regulatory takings.  This is a physical takings case – the taking was caused by a big hunk of water coming on to the owner's property.  Yet many of the cited authorities in the decision are regulatory takings cases.  And the test that the Court orders on remand to determine whether a taking has occurred includes factors from the Penn Central regulatory taking test – e.g., to determine whether there's been a taking here the Court says that the lower court on remand should look at, among other things, the owner's reasonable investment-backed expectations and the degree of interference from the governmental action.  The decision also adds as a factor the duration of the governmental action to determine whether a taking has occurred, previously applied for regulatory takings.

Mixing these regulatory taking factors into the test for a physical taking is not a good thing if you are a property rights proponent.  (Was Scalia napping?  He could have concurred.  Or maybe he was thinking this ruling was wholly limited to the flooding context which might be treated as sui generis). 

Take reasonable investment-backed expectations.  This factor is totally irrelevant in physical takings, as is degree of interference.  For example, in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419  [], the challenged law required owners to accept installation of cable boxes on their property.  The installation wouldn't decrease the value of the property in any way.  So there was itsy interference and no problems with any reasonable investment-backed expectation.  But it was still a taking.  Why?  The taking was physical – the cable box was invading the owner's space.  In the bundle of property rights protected under the Takings Clause, the right to exclude is the biggie.  It's the basis on which the Court has established distinctly different tests for physical and regulatory takings. 

Apparently when a physical invasion is temporary, the Court is suggesting that the line between physical and regulatory takings law test blurs.  There is logic to this perspective.  If, for example, the government invades your space for a nanosecond, is it really a taking?  Particularly when the nature of the occupation is minor?   Take, for example, U.S. v. Causby, 328 U.S. 256, 266 (1946).  The airport nearby was sending so many flights over the property owner's farm, so low and so loud, all his chickens were going kerplunk.  The Court found a taking.  No one would say one flight over property is a taking, temporary or otherwise.  But the same method of invasion is occurring whether it's one flight or many – it's a physical intrusion.  Using some sort of degree interference test still seems reasonable.  There needs to be some sort of limiting factor in that particular context.

The problem is when you start going down this squishy regulatory reasonableness Penn Central test road, the next thing you know the squishy test will be used for more and more physical invasions, and whether there's been a taking, physical or otherwise, will be entirely up to the subjective view of a particular court, and wholly unpredictable.   

This is the reason why I like takings law.  It's a big fat messy conundrum.  To understand what is going on in the jurisprudence, you need to understand the historical development of the doctrine, and why this history has led to the existing counterintuitive rules now applied.  Many very brainy judges have tried to bring sense into takings law.  They have failed.  Instead, the law is larded with inconsistencies and inexplicable results.  Every time they try to fix something, some other weird problem arises.   

Cathy certainly hasn't come up with the unified theory of takings.  Maybe when Stephen Hawking is done with that unified theory of the universe thing he can take this one on.     

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