The most interesting issues to watch in Arkansas Game and Fish Commission v. United States, which the Supreme Court will hear next week on October 3, are ones the parties have not addressed. The central issue in the case as framed by the principal briefs is whether a temporary increase in the frequency of inundation of floodplain property as a result of government action should give rise to liability under the Takings Clause. But there are two other — arguably more important — issues lurking in the background that have barely received mention: (1) whether the claim is barred by the doctrine of sovereign immunity and (2) whether the plaintiff can claim an impairment of its rights as a riparian property owner under state law.
This case involves the unusual situation of one governmental entity, a state agency, suing another government, the United States, for “just compensation” under the Takings Clause. The Arkansas Game & Fish Commission claims the U.S. Army Corps of Engineer’s temporary modifications of the operation of its Clearwater Dam in Missouri over the span of half a dozen years resulted in increased flooding of commission-owned timberlands 120 miles downstream in Arkansas. The primary mission of the commission is habitat protection, but its demand for compensation under the Takings Clause rests on an asserted “physical invasion” of its property which allegedly caused harm to commercially valuable timber.
The United States has not raised the issue, but there is a strong argument that the claim is barred by the doctrine of sovereign immunity. Sovereign immunity is rarely an issue in a takings case against the United States because the Tucker Act constitutes a general waiver of immunity from takings claims. But takings claims arising from flood damage present a special case because of a provision of the federal Flood Control Act which states: “No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood water at any time.” This provision has been raised most frequently as a defense to tort claims, but it also has been raised in takings cases, and certainly is broad enough to bar them. Given the general rule that the courts should resolve interpretive doubts in favor of preserving sovereign immunity, there is a solid sovereign immunity defense in this case.
Some property rights advocates, invoking the Court’s landmark 1987 decision in First English Evangelical Lutheran Church v. Los Angeles, contend that the Takings Clause, of its own force, abrogates sovereign immunity. But a long line of Supreme Court precedent stretching back over a century says the United States can be held financially liable under the Taking Clause only if it has consented to such a claim. In the famous case involving federal seizure of Robert E. Lee’s family mansion above Arlington cemetery, brought prior to enactment of the Tucker Act, the Court also recognized that the appropriate remedy for an uncompensated taking in the absence of a waiver of sovereign immunity is an injunction, not monetary relief. The modern First English case does not change the rule that the government is not liable under the Takings Clause absent a waiver of immunity because that decision merely recognizes that the Takings Clause creates a right of action for monetary relief, and does not address the separate immunity issue.
It is common sense that the United States should be able to invoke sovereign immunity in this type of case. When it embarked on flood control projects across the country, Congress was willing to expend vast quantities of taxpayer dollars to protect communities and property owners from flood damages. At the same time, Congress believed there should be a limit to its largesse, and the federal government should not accept financial responsibility for damages that inevitably flow, either from accident or by design, from operation of a flood control project. To some,Congress’s parsimony in the flood control arena may seem somewhat old fashioned. But this policy judgment is hardly irrational and, more importantly for present purposes, lawful.
Given the plausibility (at least) of the sovereign immunity defense, it is remarkable that the United States did not present this issue, given that it must raise threshold jurisdictional defects even if they have not been raised in the courts below, as in this case. The Solicitor General obviously does not explain his litigation strategy, but one can speculate that the client, the U.S. Army Corps of Engineers, might prefer to have the off-budget federal Judgment Fund finance takings awards rather than have to deal with injunctions limiting its discretion as to how to operate its dams. But that calculus arguably ignores the interests of the general taxpayer and conflicts with Congress’s policy judgment in this instance. In any event, the Court can and should address the sovereign immunity issue despite the reluctance of the United States to do so.
The second striking gap in the parties’ briefing is the virtually complete lack of attention to the nature and scope of plaintiff’s property interest. It is black letter law that a successful takings claimant must establish that she has “property” that was “taken.” Since the alleged property damage occurred in Arkansas, Arkansas law defines the nature and scope of the property interest at stake in this case.
Plaintiff has prosecuted its case, and the courts below adjudicated the case, on the premise that plaintiff has a vested entitlement to the exact same volume of water passing by its land as has passed by the land in the past. But, as any student of water law (here, riparian water law doctrine, in particular) can attest, this premise is incorrect. Every riparian’s use of a water body is inextricably bound up with the use of the water by others upstream and downstream. A riparian is only entitled to protection of reasonable water uses from others’ unreasonable uses of the water. Every riparian must accept that other riparians’ actions may reasonably reduce – or increase – the volume of water flowing his property.
The courts below failed to address the nature of plaintiff’s rights as a riparian property owner or whether the effects of the modified dam operations on the volume of water flowing past plaintiff’s land were within the bounds of reasonableness under Arkansas law. Perhaps the federal judges on the U.S. Court of Federal Claims and the U.S. Court of Appeals for the Federal Circuit are not as attuned to this threshold state property law issue as state court judges would be. In any event, in the past the Supreme Court has not been reluctant to address important threshold property questions in a takings case, even if the lower courts did not address the issue. The Court should address the issue now in this case.
What about the question on which the Court granted certiorari, if the Court ultimately reaches the question: whether a temporary inundation can give rise to takings liability? The Court could resolve the issue either way, but the choice facing the Court is fairly simple. For over a hundred years the Court has followed the rule that only a permanent (or permanently recurring) inundation with flood waters can give rise to takings liability; a temporary inundation may cause injury and give rise to tort liability, but it is not a taking. This rule is consistent with the framers’ original understanding that the Takings Clause only applies to direct seizures and ousters of possession; an inundation does not amount to a direct seizure and only a permanent inundation can fairly be described as an ouster of possession. So the Court could well affirm the Federal Circuit, which simply applied settled precedent.
On the other hand, the Court has suggested in dictum in the famous Loretto takings case that a temporary invasion of private property can give rise to takings liability, at least in certain circumstances. Moreover, other Court decisions suggest that less than total economic wipeouts, including temporary regulatory restrictions, can sometimes give rise to takings liability. If less than total wipeouts can sometimes give rise to regulatory takings liability, then why can’t less than permanent intrusions potentially generate takings liability? One of the serious problems with this argument is that it calls for application of a “living constitution” approach to constitutional interpretation, putting the conservative wing of the Court to the test on whether private property should trump fidelity to strict interpretation of the Constitution.
In any case, the Court’s opinion will be a good deal more interesting if it goes off on one of the threshold issues discussed above.
John Echeverria, a CPR Member Scholar and Professor at Vermont Law School, filed an amicus brief in the case in support of the United States on behalf of a coalition of organizations representing local governments.