Arkansas Game and Fish Comm'n v. United States (11-597)

argument 11-597

Arkansas Game and Fish Comm'n v. United States

Supreme Court of the United States 1h 0m 6 speakers 8 chapters transcribed 7 days ago official recording ↗

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What is the central takings issue presented by Arkansas Game & Fish Commission?

John G. Roberts 0:02

We'll hear argument next this morning in case number eleven five ninety seven, Arkansas Game and Fish Commission versus the United States.

0:09

Mr.

John G. Roberts 0:09

Goodhart.

Stephen J. Goodhart 0:11

Mr Chief Justice, and may it please the court. The issue is whether temporary flooding can ever constitute a taking under the Fifth Amendment. The Federal Circuit said no, never. ruling that the permanent consequences of the government's actions were not relevant solely because its actions were not permanent. Respectfully, your honors, that cannot be the rule. There are at least two reasons why. First, the United States must provide just compensation when its direct physical invasion substantially intrudes upon a landowner's protected property interest, regardless of the particular mode or duration of that invasion. And second, The Federal Circuit's decision conflicts with fundamental guarantees that the Takings Clause is intended to preserve

Stephen J. Goodhart 1:00

and therefore is manifestly unjust.

Ruth Bader Ginsburg 1:03

What about this court's precedent in what is it, sanguinity case, where the court said that for there to be uh government responsibility, it is at least necessary that the overflow constitute a permanent invasion of the land, amounting to an appropriation, not merely an injury. property. We would have to withdraw or modify that statement, would we not, if you If your your argument prevails.

Stephen J. Goodhart 1:38

Justice Ginsburg, we would say that you would not have to overrule Sanguinetti because the language there, permanent flooding invasion, was was not how the case turned on the result. The court there did make an inaccurate summary of the early flood taking cases, Pumpley, Lina and Crest. None of those cases said that flooding had to be permanent. The facts in those cases did have uh permanent uh condition of flooding, but that that was not made a requirement, and none of those cases said that you could not have temporary flood invasions. But Your

Unknown 2:17

Honor was Sanguinetti uh did had we had any temporary takings cases before sanguinity. In other words, was was Sanguinetti expressing a special rule for flooding Or was it was it simply saying There can't be a temporary taking. If the latter s uh s uh that that dictum, if it's dictum or a holding, if it was a holding, has already been overruled by our later temporary takings cases.

Stephen J. Goodhart 2:49

Justice Scalia, there you're correct, there was no temporary takings prior to Sanguinetti. The court there didn't have occasion to address temporary flooding and whether that could constitute a taking. And All of the cases after sanguinity that have actually addressed whether a direct temporary invasion will substant that substantially intrudes upon property interests. have held that yes, you can have a temporary

Stephen G. Breyer 3:16

which ones? Because I counted eleven cases. which either say, state, some seem to hold or support the proposition. that when it's temporary with a flood It's a trespass. And where it's permanent, it's a taking. Okay? I I mean I have a level. And so I got from my law clerk. And then I tried to say, Well, what are the ones that say the opposite? And so far we've come up with zero. All right. You could argue though there were three cases during the war uh which m might be uh read that way, though they don't quite mention it. All right. So which of the cases that you uh rather than list my eleven, I'm more interested in what you think. And so I'd like to know which of the ones you think support? W with something like a flood, which you know it's not you're not physically taking a hold of the whole thing.

Stephen G. Breyer 4:07

You're sending something in that comes back. W which of the ones support you that temporary is not a trespass, temporary is a taking?

Stephen J. Goodhart 4:17

Justice Breyer in the Dickinson case in nineteen forty seven where The court found a taking from flooding. Uh Mr. Dickinson reclaimed his property, effectively reclaimed most of the property that had flooded, effectively ending the the the flood invasion. And the court there said the taking was a taking when that occurred, regardless of whether the landowner does reclamation. Of course this court in the war seizure cases, in um General Motors, Pettymotor,