No. 11-597

IN THE

Supreme Court of the United States

ARKANSAS GAME & FISH COMMISSION,

Petitioner,v.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari tothe U.S. Court of Appeals

for the Federal Circuit

BRIEF OF WASHINGTON LEGAL FOUNDATION

AND ALLIED EDUCATIONAL FOUNDATION AS

AMICI CURIAE IN SUPPORT OF PETITIONER

Richard A. Samp (Counsel of Record)Washington Legal Foundation2009 Mass. Ave, NWWashington, DC 20036(202) 588-0302rsamp@wlf.org

Date: July 5, 2011

QUESTION PRESENTED

When the Government adopts a policy that willforeseeable result in repeated physical invasions ofprivate property by flood waters, but the policy isdesignated as temporary in nature, what test should beadopted in determining whether the policy results in a“taking” compensable under the Fifth Amendment?

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TABLE OF CONTENTSPage

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . v

INTERESTS OF AMICI CURIAE . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 6

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

I. FLOODING CASES ARE NOT EXEMPTFROM GENERALLY APPLICABLETAKING CLAUSE PRINCIPLES, WHICHP E R M I T C O M P E N S A T I O N REGARDLESS WHETHER THEC H A L L E N G E D P O L I C Y I SPERMANENT . . . . . . . . . . . . . . . . . . . . . . . . 10

A. Floods Are Deemed “InevitablyRecurring” Whenever a ClaimantDemonstrates That RepeatedFlooding Was the InevitableConsequence of the Government’sActions . . . . . . . . . . . . . . . . . . . . . . . . . 11

B. Although a Government “Taking”Requires an Element of Volition,the Claims Court Found That theCorps Adopted a Policy WhoseForeseeable Consequence WasDestructive Flooding of theManagement Area . . . . . . . . . . . . . . . . 14

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Page

C. The Federal Circuit Erred byEstablishing a Rule Barring AllFlooding Claims Based onTemporary Government Policies . . . . 18

II. TEMPORARY TAKINGS ARE SUBJECTTO PER SE ANALYSIS WHEN, ASHERE, THERE IS A PHYSICALINVASION OF THE PROPERTY . . . . . . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

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TABLE OF AUTHORITIESPage(s)

Cases:

Armstrong v. United States, 364 US. 40 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . 10Bond v. United States, 131 S. Ct. 2355 (2011) . . . . . . . . . . . . . . . . . . . . . . 23Brown v. Legal Found. Of Washington, 538 U.S. 216 (2003) . . . . . . . . . . . . . . . . . . . 1, 17, 21Causby v. United States, 328 U.S. 254 (1946) . . . . . . . . . . . . . . . . . . . . . . . . 17Dolan v. City of Tigard, 512 U.S. 374 (1994) . . . . . . . . . . . . . . . . . . . . . . . . 17First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . 10Hodel v. Irving, 481 U.S. 704 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . 22Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) . . . . . . . . . . . . . . . . . . . . . . 7, 20Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978) . . . . . . . . . . . . . . . . 20Phillips v. Washington Legal Found., 524 U.S. 156 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . 1Pumpelly v. Green Bay & M. Canal Co., 80 U.S. 166 (1871) . . . . . . . . . . . . . . . . . . . . . . . 12, 13San Diego Gas & Elec. Co. v. San Diego, 450 U.S. 621 (1981) . . . . . . . . . . . . . . . . . . . . . . . . 10Sanguinetti v. United States, 264 U.S. 146 (1924) . . . . . . . . . . . . . . . . . . . 8, 15, 16Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 525 U.S. 302 (2002) . . . . . . . . . . . . . . . 1, 8, 19, 20, 21

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Page(s)United States v. Cress, 243 U.S. 316 (1917) . . . . . . . . . . . . . . 5, 7, 12, 13, 19United States v. General Motors Corp., 323 U.S. 373 (1945) . . . . . . . . . . . . . . . . . . . . . . . . . 20United States v. Kansas City Life Ins. Co., 339 U.S. 799 (1950) . . . . . . . . . . . . . . . . . . . . . . . . . 14United States v. Lynah, 188 U.S. 445 (1903) . . . . . . . . . . . . . . . . . . . . . . 12, 13United States v. Petty Motor Co., 327 U.S. 372 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . 20United States v. Pewee Coal Co., 341 U.S. 113 (1951) . . . . . . . . . . . . . . . . . . . . . . . . 19Yee v. Escondido, 503 U.S. 519 (1992) . . . . . . . . . . . . . . . . . . . . . 7, 8, 15Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012) . . . . . . . . . . . . . . . . . . . . . . 23

Statutes and Constitutional Provisions:

U.S. Const., amend v., Takings Clause . . . . . . passim

Federal Tort Claims Act . . . . . . . . . . . . . . . . . . . . . . 15

Tucker Act, 28 U.S.C. § 1491 . . . . . . . . . . . . . . . . . . . 3

Miscellaneous:

Webster’s New Collegiate Dictionary (G. & C. Merriam Co. 1981) . . . . . . . . . . . . . . . . . . 14

INTERESTS OF AMICUS CURIAE

The Washington Legal Foundation (WLF) is apublic interest law and policy center with supporters inall 50 States. WLF devotes a substantial portion of itsresources to defending free enterprise, individual rights,and a limited and accountable government.1

WLF has regularly appeared before this and otherfederal courts in cases involving claims arising underthe Fifth Amendment’s Takings Clause. See, e.g.,Phillips v. Washington Legal Found., 524 U.S. 156(1998); Tahoe-Sierra Preservation Council, Inc. v. TahoeRegional Planning Agency, 525 U.S. 302 (2002); Brownv. Legal Found. of Washington, 538 U.S. 216 (2003).

The Allied Educational Foundation (AEF) is anon-profit charitable foundation based in Englewood,New Jersey. Founded in 1964, AEF is dedicated topromoting education in diverse areas of study, such aslaw and public policy, and has appeared as amicuscuriae in this Court on a number of occasions.

Amici are concerned that governments not bepermitted to circumvent Takings Clause constraints bycharacterizing their challenged policies as temporary innature. Any challenged policy can be characterized astemporary, in the sense that there is always thepossibility that the policy will be lifted at some futuredate. Amici strongly believe that the approach adopted

1 Pursuant to Supreme Court Rule 37.6, amici state that nocounsel for a party authored this brief in whole or in part; and thatno person or entity, other than amici and their counsel, made amonetary contribution intended to fund the preparation andsubmission of this brief. All parties have consented to the filing ofthis brief; letters of consent have been lodged with the clerk.

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by the court below – whereby a federal governmentwater-release policy labeled “temporary” cannot giverise to a traditional Takings Clause analysis – is a recipefor emasculating the Takings Clause.

STATEMENT OF THE CASE

Every year between 1993 and 2000, the ArmyCorps of Engineers (the “Corps”) adopted “planneddeviations” from its normal schedule of water releasesfrom the Clearwater Dam in southeast Missouri.2 Thosedeviations entailed decreased water releases in thespring (when some farmers living downstream wantedreduced river levels during their planting season), and increased water releases during summer months. Petitioner Arkansas Game & Fish Commission (the“Commission”) alleges that these deviations causedextended summer flooding of its wilderness area(located along the Black River, 115 miles downstreamfrom the dam) – rendering its property unusable formonths at a time and leading to the entirely foreseeabledestruction of timber worth millions of dollars. TheCorps persisted with the deviations despite repeatedcomplaints from the Commission that the deviationswere causing massive flooding damage. After the treesdied, the Corps acknowledged the destructive effects ofits deviations, abandoned plans to adopt the 1993-2000release patterns as a permanent policy, and approved nomore deviations.

2 The plan evidencing the Corps’s normal schedule of waterreleases was adopted in 1953, soon after construction of theClearwater Dam.

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In 2005, the Commission filed suit against theUnited States (the “Government”) under the TuckerAct, 28 U.S.C. § 1491, claiming that the 1993-2000deviations and resultant floods constituted anuncompensated taking of its property in violation of theFifth Amendment’s Takings Clause. After, conductinga two-week trial, the Claims Court agreed and awardedthe Commission nearly $5.8 million in compensation. Pet. App. 39a-161a.

The Claims Court held that the Commission, inorder to prevail on its takings claim, was required toestablish three factual elements by a preponderance ofthe evidence: (1) the Corps released water from theClearwater Dam that “proximately and directly caused”the Commission’s property (known as “the ManagementArea”) to be flooded; (2) the flooding caused substantialdamage to the property; and (3) the Government eitherintended to and did “take” the property, or it tookactions “the natural consequence of which were to take”the property. Id. at 81a. The court concluded that theCommission introduced evidence sufficient to establishall three elements.

In particular, the Claims Court found that theGovernment intended to injure or invade theManagement Area – based on a finding that “areasonable investigation” would have revealed that thedeviations would cause extended summer flooding of theManagement Area and would damage the Commission’stimber. Id. at 99a. The court concluded that the 1993-1999 deviations were the sole cause of the summerflooding in those years and were the sole cause of thesubstantial destruction of the Commission’s timber inthe years 1999 and 2000. Id. at 104a-128a.

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The court held that intentional Governmentwater releases that result in foreseeable floodingconstitute the acquisition of a flowage easement acrossthe flooded property. Id. at 85a. It stated that acompensation is warranted under the Fifth Amendment“where a landowner can demonstrate that governmentactions subjected his or her land to intermittent,frequent, and inevitably recurring flooding.” Id. at 87a(citations omitted). The court concluded that theCommission met that standard, based on the court’sfindings that: (1) the deviations “regularly inundatedportions of the Management Area during the growingseason to an extent not experienced previously; and (2)because of the “sustained nature” of the water releasesduring the growing seasons, “the flood waters wouldstay on the affected portions of the Management Areafor an extended period.” Id. at 88-89. It further heldthat the Government’s flood-inducing water releaseswere not mere “isolated invasions that might merelyconstitute a tort.” Id. at 89a.

A divided U.S. Court of Appeals for the FederalCircuit reversed. Pet. App. 1a-37a. The appeals courtconcluded that it need not address the Government’scontention that various of the trial court’s factualfindings (particularly its finding that the flooding andresultant timber damage were entirely foreseeable)constituted “clear error.” Rather, it held that theCommission’s takings claims were precluded as a matterof law “because the deviations were by their very naturetemporary and, therefore, cannot be ‘inevitablyrecurring’ or constitute the taking of a flowageeasement.” Id. at 22a.

The appeals court held that “cases involving

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flooding and flowage easements are different” from run-of-the-mine takings cases and are controlled by adistinct set of judicial precedents. Id. at 18a. The courtsaid that government-induced flooding cannotconstitute a taking unless it is a “permanent invasion ofthe land,” and that an invasion cannot be deemed“permanent” unless there exists a “permanentcondition of continual overflow” or “a permanentliability to intermittent but inevitably recurringoverflows.” Id. at 18a-19a (quoting United States v.Cress, 243 U.S. 316, 328 (1917). The court concludedthat because the Corps’s deviations were approved on anannual basis during the 1993-1999 period and werenever intended to constitute a new, permanent water-release policy, the flooding of the Management Areacould not, by definition, be deemed “inevitablyrecurring.” Id. at 27a-28a (noting that “the deviationsin question were plainly temporary and the Corpseventually reverted to the permanent plan”).

Judge Newman dissented. Pet. App. 29a-37a. She would have held that “when the invasion [of privateproperty through flooding] preempts the owner’s rightto enjoy his property for an extended period of time, theprinciples of constitutional deprivation of propertyapply,” and that the “eventual abatement of theflooding does not defeat entitlement to justcompensation.” Id. at 33a (citations omitted).

In August 2011, the appeals court denied theCommission’s petition for panel rehearing andrehearing en banc. Pet. App. 164a. Judge Newmanwrote an opinion dissenting from the denial, as didJudge Moore (joined by Judges O’Malley and Reyna). Id. at 170a-179a. Judge Moore took issue with the

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panel’s statement that “unlike other types of takings,flooding due to government action must constitute a‘permanent invasion” in order for the landowner torecover.” Id. at 172a. He stated, “I think the Court ofFederal Claims properly analyzed the eight years ofrelease rate deviations and the recurring flooding thatthese caused and determined that the character of thisgovernment action – this repeated, consistent flooding– constituted a taking.” Id. at 175a-176a.

Judge Dyk, the author of the panel decision,wrote an opinion concurring in the denial of the petitionfor rehearing en banc. Id. at 165a-169a. He stated thatthe panel decision did not preclude courts from lookingbehind a Government assertion that its water-releasepolicy was “temporary” in nature. Id. at 168a. If theGovernment attempts to hide behind a “temporary”label by, for example, labeling 50 “consecutive andidentical one year deviations” as a “temporary” policy,a landowner could properly assert a takings claim bychallenging the “temporary” nature of the policy, heexplained. Id. at 169a. A takings claim is precluded,however, when (as here) the evidence demonstrated thatthe Government adopted no long-term plan to continueits deviations from the standard release policy, hestated. Id.

SUMMARY OF ARGUMENT

The Federal Circuit erred in concluding thatflooding cases are exempt from the rules normallyapplicable to claims asserted under the Takings Clause.Under those rules, “Where the government authorizesa physical occupation of property (or actually takestitle), the Takings Clause generally requires

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compensation.” Yee v. City of Escondido, 503 U.S. 519,522 (1992). In such cases, compensation is required “nomatter how minute the intrusion, and no matter howweighty the public purpose behind it.” Lucas v. SouthCarolina Coastal Council, 505 U.S. 1003, 1015 (1992). While a temporary physical occupation is obviously amore “minute . . . intrusion” than a permanent physicaloccupation, its temporary nature is not normallydeemed a reason to deny compensation.

The Federal Circuit’s decision to exempt floodingcases from normally applicable Takings Clause ruleswas based on a misreading of this Court’s precedents. The Court stated in 1917 in Cress that flooding cannotform the basis for a takings claim unless it is either“permanent” or “inevitably recurring.” 243 U.S. 316. The Federal Circuit apparently misinterpreted thephrase “inevitably recurring,” interpreting it to mean“recurring for the indefinite future.” To the contrary,the phrase merely requires the claimant to demonstratethat repeated flooding was the inevitable consequenceof the government’s actions and would continue so longas the government’s action continued. When the Courthas denied Takings Clause claims in flooding cases, itgenerally has done so because the claimant has failed todemonstrate that the government’s policy was theactual cause of flooding, not because the policy wasadopted on a temporary basis only or because theflooding did not continue indefinitely.

The concept of a government “taking” hastraditionally been understood to include an element ofvolition; the Government generally is not deemed tohave taken private property unless it intended to “take”the property or at least intended actions whose

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foreseeable and natural consequences would be the“taking” of the property. See, e.g., Yee, 503 U.S. at 522(a taking occurs where the government “authorizes” aphysical occupation of property). That volition require-ment prevents the Government from being held liable topay compensation every time a flood occurs in thevicinity of a Government dam. Thus, where a flood ismore properly attributable to unexpectedly heavy rainsrather than to dam construction, and for that reason itsrecurrence cannot be deemed “inevitable,” nocompensation is warranted. Sanguinetti v. UnitedStates, 264 U.S. 146 (1924). Once the volitionrequirement is satisfied, however, nothing in theCourt’s case law suggests that flooding cases should betreated differently from any other cases in which aproperty owner asserts a Takings Clause claim.

Where the repeated flooding of property is foundto be the direct and foreseeable result of Governmentpolicy, the flooding can appropriately be deemed a“physical occupation” of the property by theGovernment. The Court has repeatedly stated that suchphysical occupation constitutes a per se taking that isalways compensable, regardless whether the occupationis intended to be permanent or temporary. The Courthas distinguished between permanent and temporarygovernment policies only in the context of regulatorytakings. Tahoe-Sierra, 535 U.S. at 323 (a permanentregulation that deprives a property owner of all value isa per se taking; but courts assessing a Takings Clausechallenge to a regulation that only temporarily deprivesa property owner of all value must undertake “complexfactual assessments of the purposes and economiceffects of government actions.”). Accordingly, the Courtshould rule that the Commission’s claims are subject to

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a per se takings analysis.

The Government asserted in the Federal Circuitthat several of the Court of Federal Claims’s factualfindings (particularly its findings regarding causationand foreseeability) constituted “clear error.” TheFederal Circuit did not address that assertion, butinstead held that Takings Clause liability was precludedas a matter of law due to the temporary nature of theGovernment’s deviations. Because the appeals courthas not yet ruled on the Government’s “clearlyerroneous” argument, this Court should not address theargument in the first instance. Amici respectfullysuggest that the Court reverse the appeals court’s rulingthat precluded Takings Clause compensation for“temporary” flooding. It should then remand the caseto allow the appeals court to consider the Government’sassertion that the trial court’s judgment was based onclearly erroneous factual findings. The Federal Circuitshould be instructed to affirm the trial court’s judgment(on the basis of a per se takings theory) if it concludesthat the challenged factual findings were not clearlyerroneous.

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ARGUMENT

I. FLOODING CASES ARE NOT EXEMPTFROM GENERALLY APPLICABLETAKING CLAUSE PRINCIPLES, WHICHPERMIT COMPENSATION REGARDLESSWHETHER THE CHALLENGED POLICY ISPERMANENT

The Takings Clause of the Fifth Amendmentprovides, “[N]or shall private property be taken forpublic use, without just compensation.” One of theprincipal purposes of the Takings Clause is “to barGovernment from forcing some people alone to bearpublic burdens which, in all fairness and justice, shouldbe borne by the public as a whole.” Armstrong v. UnitedStates, 364 U.S. 40, 49 (1960).

The Court has repeatedly made clear that theTakings Clause is fully applicable both to governmentpolicies that take private property on a permanent basisand to government policies that do so on a temporarybasis. See, e.g., First English Evangelical LutheranChurch of Glendale v. County of Los Angeles, 482 U.S.304 (1987) (“‘temporary’ takings which, as here, deny alandowner all use of his property, are not different inkind from permanent takings, for which theConstitution clearly requires compensation”); San DiegoGas & Electric Co. v. San Diego, 450 U.S. 621, 657(1981) (Brennan, J., dissenting) (“Nothing in the JustCompensation Clause suggests that ‘takings’ must bepermanent and irrevocable.”).

Indeed, the Federal Circuit explicitly

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acknowledged the validity of that principle as a generalmatter. Pet. App. 18a (“In general, if particulargovernment action would constitute a taking whenpermanently continued, temporary action of the samenature may lead to a temporary takings claim.”). Theappeals court nonetheless concluded that “casesinvolving flooding and flowage easements are different”and that the constitutional protections normallyafforded to landowners whose property is temporarilytaken from them are inapplicable to temporary takings that result from government-induced flooding. Id. Deeming itself bound by its own precedent as well asprecedent from this Court, the Federal Circuit held thatflooding induced by a temporary government policy isnot compensable because such flooding cannot bedeemed to meet a prerequisite that it be “inevitablyrecurring.” Id. at 21a. Because the Corps’s 1993-1999deviations were not implemented pursuant to apermanent water-release policy, the appeals court heldthat the Commission was categorically ineligible forcompensation under the Takings Clause. Id. at 22a.

The Federal Circuit’s decision to exempt floodingcases from normally applicable Takings Clause ruleswas based on a misreading of this Court’s precedentsand their reference to “inevitably recurring” flooding.

A. Floods Are Deemed “InevitablyRecurring” Whenever a ClaimantDemonstrates That Repeated Flood-ing Was the Inevitable Consequenceof the Government’s Actions

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The reference to “inevitably recurring” floodingoriginated with the Court’s 1917 Cress decision. In thatcase, the Court upheld the takings claims of twoproperty owners whose property was adversely affectedby the construction of locks and dams along rivers inKentucky. One of the property owners demonstrated attrial that, as a result of erection of the locks and dams,6.6 acres of his property was “subject to frequentoverflows of water from the river, so as to depreciate itone half of its value.” 243 U.S. at 318. The Courtrejected the Government’s contention that no taking iseffected when government-induced flooding deprives theproperty owner of only a portion (rather than all) of theproperty’s value. Id. at 328. The Court explained that“it is the character of the invasion, not the amount ofdamage resulting from it, so long as the damage issubstantial, that determines whether it is a taking.” Id. Noting that it had ruled in two prior cases3 that floodingof lands by “permanent” backwater created by damconstruction is always compensable under the TakingsClause, the Court saw no reason to create a differentrule when the dam causes flooding that would inevitablyrecur even if it does not create a continuous overflow:“There is no difference in kind, but only of degree,between a permanent condition of continual overflow bybackwater and a permanent liability to intermittent butinevitably recurring overflows; and on principle, theright to compensation must arise in the one case as inthe other.” Id. (emphasis added).

We note initially that the issue of a temporary

3 Pumpelly v. Green Bay & M. Canal Co., 80 U.S. 166(1871); United States v. Lynah, 188 U.S. 445 (1903).

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government policy was not at issue in Cress (e.g., theGovernment had no plans to remove any of its locks anddams), and thus the Court had no occasion to considerwhether property owners could obtain compensation forflooding caused by a temporary water-managementpolicy. Accordingly, the Court’s reference to“intermittent but inevitably recurring overflows” shouldnot be read as passing judgment on the compensabilityof overflows that will recur but (due to the temporarynature of the government policy) will not necessaryrecur indefinitely.

Nonetheless, the rationale of Cress is stronglysupportive of the Commission’s position. Cressemphasized that courts should focus on the “characterof the invasion,” not its magnitude. Id. TheCommission’s situation is analogous to the plaintiff inCress: the magnitude of its loss was tempered by thefact that the Corp’s deviations were never adopted as apermanent policy and were eventually abandoned. But“the character of invasion” was similar to the invasionsat issue in Pumpelly and Lynah: in each case, theproperty owner suffered substantial damage to the valueof its property because of the government’s intentionaladoption of a challenged water management policy.

The Federal Circuit appears to have based itsholding on a misunderstanding of Cress’s use of thephrase “inevitably recurring overflows.” See, e.g., Pet.App. 21a (The condition leading to the ‘intermittent,but inevitably recurring’ flooding . . . must bepermanent. Otherwise, it could not be ‘inevitablyrecurring.’”). The appeals court appears to haveinterpreted the phrase as referring to events that willrecur for all times. That is not the meaning of the word

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“inevitable.” An event is defined as “inevitable” if it is“incapable of being avoided or evaded.” Webster’s NewCollegiate Dictionary (G. & C. Merriam Co. 1981). Thus, an event is “inevitably recurring” if recurrence ofthe event is “incapable of being avoided or evaded.” Nothing about that phrase connotes recurrence on apermanent basis, or even the likelihood of recurrence onmore than one occasion. The flooding of theManagement Area that occurred in 1993 as a result ofthe Corps’s deviations was “inevitably recurring” in thesense that the 1994-1999 flooding was entirelypredictable based on the Corps’s continuation of itsdeviations for a seven-year period.

The Court repeated its “inevitably recurring”language in several later flooding cases in whichTakings Clause claims were raised. In none of thosedecisions did the Court suggest that government-induced flooding should not be deemed “inevitablyrecurring” (and thus ineligible for Takings Clausecompensation) simply because the government’s water-control policy was not permanent. See, e.g., UnitedStates v. Kansas City Life Ins. Co., 339 U.S. 799, 810 n.8(1950) (citing Cress’s “inevitably recurring” languageand affirming award of compensation to landowner).

B. Although a Government “Taking”Requires an Element of Volition, theClaims Court Found That the CorpsAdopted a Policy Whose ForeseeableConsequence Was DestructiveFlooding of the Management Area

The concept of a government “taking” has

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traditionally been understood to include an element ofvolition; the Government generally is not deemed tohave taken private property unless it intended to “take”the property or at least intended actions whoseforeseeable and natural consequences would be the“taking” of the property. See, e.g., Yee, 503 U.S. at 522(a taking occurs where the government “authorizes” aphysical occupation of property).

Thus, a potential Takings Clause claim does notarise simply because an individual claims that theGovernment is responsible for his property’sdepreciation in value. For example, if a nuclear powerplant operated by a government-owned utility suffers anaccidental meltdown and radiation leaks into theatmosphere, nearby property owners almost surely willsuffer a substantial loss in property value. Theradiation contamination would not normally be deemeda Fifth Amendment “taking,” however, because thecontamination was not the direct result of an authorizedgovernment policy. Rather, if the Government could beshown to have acted negligently, the landowners couldlikely maintain a cause of action under the Federal TortClaims Act.

This principle – that a Takings Clause claim canbe maintained only where the invasion of privateproperty is foreseeably caused by an authorizedgovernment policy – is well illustrated by the Court’sSanguinetti decision. In that case, the Government hadconstructed a canal in Stockton, California, as well as a“diversion dam” immediately below the intake to thecanal. Engineers determined that the canal wassufficient to carry away all expected waters, and thusthey reasonably expected no flooding on the upland side

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of the dam. 264 U.S. at 147. However, “a flood ofunprecedented severity” caused an overflow onto thePetitioner’s property, and he sought compensationunder the Takings Clause. The Court rejected theclaim, finding that the flooding was neither foreseeableby the Government nor shown to have been caused bythe Government’s construction of a canal and dam:

Prior to the construction of the canal the landhad been subject to the same periodical overflow. If the amount or severity thereof was increasedby reason of the canal, the extent of the increaseis purely conjectural. Appellant was not ousted,now was his customary use of the land prevented,unless for short periods of time. If there was anypermanent impairment of value, the extent of itdoes not appear. It was not shown that theoverflow was the direct and necessary result ofthe structure; nor that it was within thecontemplation of or reasonably to be anticipatedby the government.

Sanguinetti, 264 U.S. at 149-150.

It is true, of course, that issues of foreseeabilityand causation may be more complex in a flooding casethan in other sorts of cases that regularly arise underthe Takings Clause. That is so because in flooding casesit is water, not government employees, that invade thelandowner’s property; foreseeability and causation willgenerally not be disputed by the Government when itsown employees enter and take possession of the

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property pursuant to a government policy.4 Once thevolition requirement is satisfied, however – that is, oncethe court determines that the Government intended toflood the property or to take actions whose natural andforeseeable consequences included the flooding –nothing in the Court’s case law suggests that floodingcases should be treated differently from any other casesin which a property owner asserts a takings claim.

The Court of Federal Claims issued detailedfactual findings regarding foreseeability and causation. It found that the Government intended to injure orinvade the Management Area – based on a finding that“a reasonable investigation” would have revealed thatthe deviations would cause extended summer flooding ofthe Management Area and would damage theCommission’s timber. Pet. App. at 99a. The court alsofound that the 1993-1999 deviations were the sole causeof the summer flooding in those years and were the solecause of the substantial destruction of the Commission’stimber in the years 1999 and 2000. Id. at 104a-128a. Indeed, while some flooding would have occurred if theCorp had adhered to its 1953 water-release plan or if the

4 Amici note that the Court has regularly recognizedTakings Clause claims in cases in which the property invasionoccurs pursuant to a Government policy but it is not theGovernment itself that undertakes the invasion. See, e.g., Dolanv. City of Tigard, 512 U.S. 374 (1994) (Takings Clause violationfound where city required property owner to permit pedestrians andbicyclists to traverse her property; Brown, 538 U.S. at 235 (State ofWashington required that interest earned on trust accounts betransferred to a private foundation dedicated to providing legalservices for the indigent); Causby v. United States, 328 U.S. 254(1946) (federal government established airport that caused privateplanes to invade the airspace of adjacent property owners.

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Clearwater Dam had never been built, the Courtconcluded that the destruction of timber would not haveoccurred under any of those alternative factualscenarios. Id. The Federal Circuit did not question anyof those factual findings. Pet. App. 22a. Given thosefindings, the Federal Circuit erred in concluding thatthis case is not governed by this Court’s standardsgoverning temporary takings.

C. The Federal Circuit Erred byEstablishing a Rule Barring AllFlooding Claims Based on TemporaryGovernment Policy

In its brief opposing the petition for a writ ofcertiorari, the Government asserts that the FederalCircuit did not, in fact, establish a blanket policy thatbars all Takings Clause claims based on an assertionthat flooding was caused by a temporary governmentpolicy. U.S. Opp. Cert. 14-15. That assertion is withoutmerit.

In an opinion concurring in the denial of thepetition for rehearing en banc, Judge Dyk (the author ofthe panel decision) sought to elaborate on the panel’sviews regarding temporary takings claims. Heexplained that a Takings Clause claimant complainingof government-induced flooding could prevail bydemonstrating that the challenged government policywas really a permanent policy even though theGovernment called it a temporary policy. Pet. App.168a-169a. But that statement does nothing to changethe blanket nature of the Federal Circuit’s bar on claimsbased on a less-than-permanent water-release policy.

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The concurring opinion makes clear that a TakingsClaim is absolutely barred when (as here) the evidencedemonstrates that the Government has adopted no long-term plan to continue the challenged water-releasepolicy. As explained above, the Federal Circuit’scategorical bar on temporary takings claims isinconsistent with established case law.

II. TEMPORARY TAKINGS ARE SUBJECT TOPER SE ANALYSIS WHEN, AS HERE,THERE IS A PHYSICAL INVASION OFTHE PROPERTY

Where the repeated flooding of property is foundto be the direct and foreseeable result of Governmentpolicy, the flooding can appropriately be deemed a“physical occupation” of the property by theGovernment. In its flooding cases, the Court hasrepeatedly referred to Government-induced flooding ofthe property as an “invasion.” See, e.g., Cress, 243 U.S.at 328. Such physical occupations are generally deemedto constitutes a per se taking that is alwayscompensable, regardless whether the occupation isintended to be permanent or temporary.

For example, the Court explained in Tahoe-Sierra:

When the government physically take possessionof an interest in property for some publicpurpose, it has a categorical duty to compensatethe former owner, United States v. Pewee CoalCo., 341 U.S. 113, 115 (1951). Thus,compensation is mandated when a leasehold is

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taken and the government occupies the propertyfor its own purposes, even though that use istemporary. United States v. General MotorsCorp., 323 U.S. 373 (1945); United States v. PettyMotor Co., 327 U.S. 372 (1946).

Tahoe-Sierra, 535 U.S. at 322 (emphasis added).

At issue in Tahoe-Sierra was whether that sameper se takings analysis should apply to temporaryregulatory takings – that is, government regulationsthat temporarily deprive a landowner of the all value ofhis property. The Court had previously ruled thatgovernment regulations that permanently deprive alandowner of all economic value of his property, eventhough they do not entail any government intrusionunder the property, are subject to a per se takingsanalysis. Lucas v. South Carolina Coastal Council, 505U.S. 1003 (1992). Tahoe-Sierra held that per se analysisshould not be applied to temporary regulatory takings. Rather, the Court held, temporary regulatory takingsclaims should be judged under the multi-factorbalancing test set forth in Penn Central TransportationCo. v. City of New York, 438 U.S. 104 (1978).

In making that determination, the Court went togreat pains to distinguish regulatory takings cases fromthose in which the government has physically occupiedthe landowner’s property. For example, it explained:

For the same reason that we do not ask whethera physical appropriation advances a substantialgovernment interest or whether it deprives theowner of all economically valuable use, we do notapply our precedent from the physical takings

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context to regulatory takings claims. Land useregulations are ubiquitous and most of themimpact property values in some tangential way –often in completely unanticipated ways. Treatingthem all as per se takings would transformgovernment regulation into a luxury fewgovernments could afford. By contrast, physicalappropriations are relatively rare, easilyidentified, and usually represent a greater affrontto individual property rights.

Tahoe-Sierra, 535 U.S. at 323-24.

The Court’s statement that “we do not askwhether a physical appropriation advances a substantialgovernment interest or whether it deprives the owner ofall economically valuable use,” is further confirmationthat Tahoe-Sierra mandates use of per se takingsanalysis in all cases involving a “physical appropriation”– regardless whether the appropriation is temporary orpermanent. An examination of whether a governmentpolicy “advances a substantial government interest” andwhether it “deprives the owner of all economicallyvaluable use” are, of course, two of the hallmarks of aPenn Central takings analysis. Stating that suchanalysis is never appropriate when the government hasappropriated property is another way of saying that perse takings analysis is mandated. See also Brown, 538U.S. at 235 (per se taking analysis is applicable to stateprogram that temporarily appropriates private funds ofprivate individuals in order to generate interest for useby legal services groups).

Moreover, per se takings analysis applies to cases

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involving physical invasions, regardless how small thedamages or how brief the invasion. As the Court hasexplained, the extent of the invasion is largelyirrelevant, because “[t]he Fifth Amendment draws nodistinction between grand larceny and petty theft.” Hodel v. Irving, 481 U.S. 704, 727 (1987) (Stevens, J.,concurring). Of course, the six-to-seven years ofphysical invasions that occurred here would, in anyevent, preclude any assertion that this case involvesonly isolated flooding.

In sum, the Commission’s claim that theGovernment physically invaded the Management Areawith its flood waters is subject to per se takings analysis. If the Claims Court’s principal factual findings(foreseeability and causation) are not clear error, a perse analysis requires that the Commission is entitled tocompensation for all its losses.

The Government asserts that Court of FederalClaims’s causation and foreseeability findings were, infact, clearly erroneous. The Federal Circuit did notaddress that assertion, however, but instead held thatTakings Clause liability was precluded as a matter oflaw due to the temporary nature of the Government’sdeviations. Because the appeals court has not yet ruledon the Government’s “clearly erroneous” argument, thisCourt should not address the argument in the firstinstance. The Court recently explained:

[W]hen we reverse on a threshold question, wetypically remand for resolution of any claims thelower courts’ error preventing them fromaddressing. See, e.g., Bond v. United States, 131S. Ct. 2355, 2359 (2011) (reversing the Court of

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Appeals’ determination on standing andremanding because the “merits of petitioner’schallenge to the statute’s validity are to beconsidered, in the first instance, by the Court ofAppeals.”).

Zivotofsky v. Clinton, 132 S. Ct. 1421, 1430-31 (2012).

Amici respectfully suggest that the Court reversethe appeals court’s ruling that precluded TakingsClause compensation for “temporary” flooding. Itshould then remand the case to allow the appeals courtto consider the Government’s assertion that the trialcourt’s judgment was based on clearly erroneous factualfindings. The Federal Circuit should be instructed toaffirm the trial court’s judgment (on the basis of a per setakings theory) if it concludes that the challengedfactual findings were not clearly erroneous.

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CONCLUSION

Amici curiae request that the Court reverse thedecision of the court of appeals.

Respectfully submitted,

Richard A. Samp (Counsel of Record)Washington Legal Foundation2009 Mass. Ave, NWWashington, DC 20036(202) 588-0302rsamp@wlf.org

Dated: July 5, 2012