Last week, I previewed the property rights case to be argued this week before the U.S. Supreme Court. Arkansas Game & Fish Commission v. United States, No. 11-597 (cert. granted Apr. 2, 2012). I focused on the legal arguments in the case, which seeks payment for the extensive timber that was destroyed when the Army Corps of Engineers flooded the Commission's property. Lawrence Hurley has written a great article giving a feel for just how important this case is at the local level. The article also explains the property rights at stake and the implications of the case:
The case could have implications beyond the narrow question of Army Corps-directed water discharges. Those keen for the Supreme Court to become more active in the property rights area, like Jonathan Adler, a law professor at Case Western Reserve University School of Law, certainly hope so. "We don't see many property rights cases," he said. "The language of the opinion will really matter."
Others are wary of the Supreme Court expanding the definition of what constitutes a taking. John Echeverria, a professor at Vermont Law School, is concerned that any kind of ruling in favor of Arkansas could have "enormous implications" for local governments.
Although the federal government is the defendant in the case before the court, local governments are far more likely to be on the receiving end of such claims if the Supreme Court endorses the practice, Echeverria wrote in a brief in support of the Army Corps filed by the International Municipal Lawyers Association and other local government groups.
In an interview, Echeverria said property rights advocates would be keen for a broad ruling on "temporary takings" that could prompt challenges to such activities as government inspections of property. "This is one front of a multifaceted debate over property rights," he added. "The property rights advocates see it as an opportunity to expand the doctrine."
Professor Echeverria is well known for having never seen a property rights claim that amounted to a taking. He supported the State of Florida before the U.S. Supreme Court in Stop the Beach Renourishment, Inc v. Florida Dept. of Environmental Protection, 130 S. Ct. 2592 (2010). In that case, I worked for counsel of record in representing the property owners after the Florida Supreme Court rewrote its waterfront property law.
In this case, Professor Echeverria "urge[s] the Court to avoid an interpretation of the Takings Clause that would impose unreasonable new burdens on local governments charged with addressing flooding threats and other serious water management challenges":
The facts of this relatively unique case have the potential to obscure the particular threats to local governments posed by the arguments of Petitioner and its amici curiae for extending physical takings octrine to temporary occupations or invasions. In a variety of contexts, for a variety of important public purposes, government officials intentionally or inadvertently cause temporary or occasional physical invasions of private property. Exposing local taxpayers to potential financial liability under the Takings Clause for all such incidental injuries to property would impose significant new financial burdens on already straitened local governments as well as impede important government functions. In other words, in the context of temporary invasions or occupations, as much as with regulatory restrictions, “government hardly could go on” if it could be held liable under the Takings Clause every time it acted. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922).
Of most immediate concern, Petitioner’s proposed takings theory would seriously undermine the ability of local governments to address a host of local water management issues. Managing the flow of storm water, sewage and other forms of water is one of the most important and difficult functions of local government.