Last week 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, of Damon Key Leong Kupchak Hastert in Honolulu. (Read more about this case on Robert's blog inversecondemnation.)
The 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.
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 representative 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.
"A win for the Arkansas Game &
Fish Commission is a win for property owners everywhere," said Phillips.
Links to the brief's in this case are available below:
Brief Amicus Curiae of Owners' Counsel of America, Arkansas Game & Fish Comm'n v. United States, No...
Links to the brief's in this case are available below:
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