Owners’ Counsel files Amicus Brief in Support of the Property Owner in Arkansas Flooding Case Before the U.S. Supreme Court

The Owners’ Counsel of America filed an amicus curiae brief in support of the property owner in Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted April 2, 2012) urging the United States Supreme Court to reverse a decision by a Federal Circuit Court which erroneously found that the federal government’s recurrent flooding did not constitute a compensable taking of private property simply because of its temporary nature. At issue in this case is whether government actions that cause recurring floods must be intended to be permanent in order for the property owner to recover just compensation under the Fifth Amendment. The brief was prepared and filed by Owners’ Counsel Hawaii member, Robert H. Thomas. (Read more about the case on Robert’s blog inversecondemnation and review the Petitioner’s merits brief here. )

Owners’ Counsel’s brief argues that “[w]hen 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.” As an organization that has long advocated for private property rights, Owners’ Counsel asks the Court to clarify this issue by reaffirming that all “direct and substantial” physical occupations of private property, even if temporary, are takings requiring the payment of just compensation under the Fifth Amendment.

Petitioner Arkansas Game & Fish Commission, a state agency charged with overseeing the protection, conservation and preservation of various species of fish and wildlife in Arkansas owns and operates 23,000 acres of land as a wildlife refuge and recreational preserve. AGFC filed an inverse condemnation action to recover compensation from the federal government for physically taking its hardwood trees within the Dave Donaldson Black River Wildlife Management Area through six consecutive years of protested flooding during the sensitive growing season. The flooding, while temporary in nature, destroyed and degraded more than 18 million board feet of timber, left habitat unable to regenerate and prevented the use and enjoyment of the area.

“The claim that government officials intended to flood the land only temporarily shouldn’t matter, what is important is the fact that the federal government permanently destroyed the trees,” said Thomas. “This case presents the Supreme Court with the chance to clear up takings law and insure than when the government destroys private property, it has a constitutional obligation to compensate the property owner,” he said. OCA’s brief emphasizes that as long as the water released by the Corps “directly and substantially” resulted in damage to petitioner’s property (Arkansas’s G&F Commission seeks only compensation for the loss of its trees), it is a taking for which just compensation is required.

The Court of Federal Claims awarded AGFC $5.78 million in just compensation, finding that the flooding actions of the Army Corps of Engineers constituted a taking of private property for which damages are recoverable under the Takings Clause of the Fifth Amendment. That award, however, was overturned by a divided appeals court which ruled that the flooding was not a taking because it was not permanent and eventually stopped. “My sincerest hope is that the U.S. Supreme Court will rule in favor of the Petitioner in this case and in doing so will underscore the importance of one of our most fundamental rights as citizens of this great country — private property ownership,” said Arkansas eminent domain attorney and Owners’ Counsel Member Michael B. Phillips of Moffitt & Phillips, PLLC. Phillips and his partner, Brandon K. Moffitt, represent landowners throughout Arkansas in condemnation litigation and joined Mr. Thomas on the brief.

The Supreme Court is scheduled to hear oral argument in this case on Wednesday, October 3, 2012.

“A win for the Arkansas Game & Fish Commission is a win for property owners everywhere,” said Phillips.

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