Court: Corps wrongly took state timber

— A federal flooding project that destroyed millions of dollars’ worth of timber in Arkansas was an unconstitutional “taking” by the government, the U.S. Supreme Court ruled Tuesday in a unanimous decision that reversed a finding by a lower court.

The case, Arkansas Game & Fish Commission v. United States, revolved around a series of planned floods at the Black River’s Clearwater Dam in Missouri that the U.S. Army Corps of Engineers undertook between 1993 and 1998.

The Game and Fish Commission argued that even though the floodwaters had long receded, the damage the water caused 115 miles downriver at the Dave Donaldson Black River Wildlife Management Area constituted a “taking” under the Fifth Amendment of the U.S. Constitution, which states that private property shall not “be taken for public use, without just compensation.”

The federal government had argued that since the floods were temporary, they did not constitute a taking.

Justice Ruth Bader Ginsburg wrote the decision for the court, which on an 8-0 count found that a taking had occurred. The high court remanded the case to the Court of Appeals.

In 2009, the U.S. Court of Federal Claims ordered the federal government to pay $5.5 million in damages plus $176,428.34 to plant new trees. Two years later, in 2011, that decision was reversed by a divided three-judge panel of the U.S. Court of Appeals for the Federal Circuit.

Justice Elena Kagan, a former U.S. Solicitor General who represented the federal government before she joined the court, did not take part in the case.

Ginsburg wrote that “no magic formula enables a court to judge, in every case, whether a given interference with property is a taking. In view of the nearly infinite variety of ways in which the government actions or regulations can affect property interests, the Court has recognized few invariable rules in this area.”

Ginsburg stressed that takings-clause cases should be decided on the merits of each case.

“No decision of this Court authorizes a blanket temporary-flooding exception to our Takings clause jurisprudence, and we decline to create such an exception in this case.”

James Goodhart, the Game and Fish Commission’s chief counsel, predicted that the decision would not “chill” future flood-control projects.

“It’s a good day for our agency, and it’s a good day for the people of our state,” he said.

Edwin Kneedler, the deputy solicitor general at the U.S. Department of Justice who argued the case for the federal government, did not return calls Tuesday.

The decision is likely to encourage other property owners to bring up takings cases against the federal government based on temporary, deliberate floods, said John Echeverria, a Vermont Law School professor who filed a friend of the court brief on behalf of the International Municipal Lawyers Association.

The result, Echeverria said, is that the federal government will be more wary about constructing water projects like dams for fear of being sued.

“The ultimate losers ... [are] the property owners and communities that depend on federal flood control projects,” he said.

Ginsburg disagreed.

“Time and time again in Takings Clause cases, the Court has heard the prophecy that recognizing a just compensation claim would unduly impede the government’s ability to act in the public interest,” she wrote. “Today’s modest decision augurs no deluge of takings liability.”

The ruling was a “step in the right direction,” according to Karen Harned, executive director for the National Federation of Independent Business’ Small Business Legal Center in Washington.

“It shows there are outer limits to what the government can do,” she said, adding that it would have been “disastrous” if the 2-1 appeals court ruling in favor of the federal government hadn’t been overturned.

Both Harned and Goodhart of the Game and Fish Commission said other state and local government agencies and property owner groups had been watching the case closely, and the two said they expect other takings cases to follow Tuesday’s decision.

In her decision, Ginsburg referred to the nuttal, overcup and willow varieties of hardwood oaks at the Dave Donaldson Wildlife Management Area. After the floods, massive numbers of trees died and the area lost 18 million board feet of lumber.

“The presence of these oaks is essential to the Area’s character as a habitat for migratory birds and as a venue for recreation and hunting,” she wrote.

Goodhart said the agency did not have enough money to restore the area.

“It’s a degraded forest,” he said. “It’s frankly nowhere near the high quality that it had been” before the flooding.

In making the decision, Ginsburg did not address an argument that the government brought up in its oral argument in October that was not addressed in the original case. In his argument, Kneedler suggested that property damage downstream from a dam is “collateral or incidental” damage and, as such does not qualify as a taking.

Similarly, Ginsburg also said the court was “not equipped” to make a decision on whether the flooding constituted a violation of Arkansas water-rights law.

Those questions, Ginsburg wrote, are “appropriately addressed” to the Court of Appeals.

“The commission is a long way from getting a check from the federal government,” said Echeverria, the Vermont Law School professor. “The court recognized that there were a large number of issues that need to be addressed.”

The Goodhart criticized the federal government for neglecting to introduce those issues until the case reached the high court. He said he was prepared to fight “until hell freezes over” to close the case.

“We’re still confident we should be awarded our judgment,” he said.

Front Section, Pages 1 on 12/05/2012

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