The US Supreme Court has agreed to hear an appeal of a Federal Circuit’s decision in an eminent domain case. The case relates to an eminent domain doctrine known as a "de facto" or "inverse" condemnation which occurs when an act of a governmental entity is, in essence, a taking even if that entity has not formally initiated a condemnation action. The official question presented in that case is: "Whether government actions that impose recurring flood invasions must continue permanently to take property within the meaning of the Takings Clause."


In Arkansas Game & Fish Commission v. United States, the Arkansas Game & Fish Commission, sought just compensation from the United States for physically taking its bottomland hardwood timber through six consecutive years of protested flooding. The Court of Federal Claims awarded $5.7 million, finding that the Army Corps of Engineers’ actions foreseeably destroyed and degraded more than 18 million board feet of timber, left habitat unable to regenerate, and preempted the Commission’s use and enjoyment. The Federal Circuit reversed that ruling and found that that the United States did not inflict a taking because its actions were not permanent and the flooding eventually stopped.


This will be a very interesting case to follow. Any time the Court decides an eminent domain case, it has the opportunity to opine regarding issues not necessarily presented by the specific case. I will continue to provide updates as the case progresses.