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Draining the Backwater: The Normalization of Temporary Floodwater Takings Law in Arkansas Game and Fish Commission v. United States

This case comment will examine the recent Supreme Court decision Arkansas Game & Fish Commission v. United States, delivered by Justice Ginsberg in the first opinion of the October 2012 term. The decision reversed the judgment of the Federal Circuit and held that flooding caused by the government need not be permanent to be a taking of property that requires just compensation under the Takings Clause of the Fifth Amendment to the U.S. Constitution. Ultimately, the Court did not determine whether a taking had occurred, instructing the lower court on remand to apply the “situation-specific factual inquir[y]” under Penn Central, which is followed to decide many takings cases outside the floodwater context. The Court used its Arkansas opinion primarily for doctrinal maintenance, bringing floodwater takings jurisprudence back into the fold of ordinary takings analysis and rejecting any new per se rules for takings like the bright lines drawn in Loretto and Lucas. By merely rejecting the recognition of a new bright-line rule and avoiding more controversial questions, the Court was able to craft a unanimous ruling with a relatively quick turnaround.

This comment will first review the factual background of Arkansas, its narrow question presented as compared to the question actually addressed by the Court, and the precedent relied on by the lower courts. The comment will then describe the decision’s analysis and holding and evaluate how the Court could have achieved a similar result by using a narrower reading of the question presented. Other arguments rejected or not adopted by the Court, including two competing per se takings theories, will also be examined, in addition to two other arguments the Court explicitly declined to discuss. Notable among these arguments is the proposition that the claim should be blocked by Arkansas state reasonable-use water-rights law. Last, the comment will review the factors to be relied upon on remand and how the Court of Federal Claims has applied the Arkansas decision in a recent high-profile case.

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