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Eminent Domain and Real Estate Valuation Blog Condemnation and Real Estate Litigation

Supreme Court Restates That Temporary Interference With Property May Cause Taking

Posted in Eminent Domain

On Tuesday, the Supreme Court released its unanimous opinion in Arkansas Game and Fish Commission v. United States. In that case, the property owner alleged that a taking occurred when government actions caused flooding on its property. The opinion states, “We rule today, simply and only, that government induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.” However, the Court restated its prior holdings in this area which provides more broad guidance. It explained:

When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking. Also relevant to the takings inquiry is the degree to which the invasion is intended or is the foreseeable result of authorized government action. So, too, are the character of the land at issue and the owner’s “reasonable investment-backed expectations” regarding the land’s use. . . .

Perhaps the most interesting aspect of this case is that the Court decided to hear the appeal. It is true that the Court reversed a clearly erroneous lower court ruling. However, a “wrong” decision does not typically cause the Court to hear a case. Rather, the Court is more interested in the broader issues presented by a case. The fact that there was a rare unanimous opinion – with no concurring opinions – demonstrates that the decision was not hard or controversial. However, for practitioners, it is always welcome to have a restatement of any eminent domain law.

The opinion can be found at www.supremecourt.gov/opinions/12pdf/11-597_i426.pdf