April 2, 2012
Today, the Supreme Court granted certiorari in one case of interest to the business community:
The Fifth Amendment to the U.S. Constitution provides that private property shall not be taken for public use without just compensation. Today, in Arkansas Game & Fish Commission v. United States, No. 11-597, the Supreme Court granted certiorari to decide whether government actions that cause flooding, but are temporary in nature, can constitute a taking of property within the meaning of the Fifth Amendment’s Takings Clause.
Petitioner, the plaintiff below, owns the 23,000-acre Dave Donaldson Black River Wildlife Management Area along the Black River in Arkansas. The Clearwater Dam is located 115 miles upstream, in southeast Missouri. Petitioner filed a lawsuit alleging that, between 1993 and 2000, the Army Corps of Engineers improperly deviated from a 1953 operating plan for the dam and caused increased flooding in its wildlife management area, which damaged trees. The Court of Federal Claims concluded that the United States had taken a temporary flowage easement over petitioner’s property and awarded nearly $6 million in damages.
A divided panel of the Federal Circuit reversed, holding that the damage was a tort (for which the United States is generally immune), not a taking. The Federal Circuit acknowledged that the Supreme Court had recognized temporary takings claims in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987). But the court of appeals instead followed a pair of Supreme Court cases from the early 1900s, United States v. Cress, 243 U.S. 316 (1917), and Sanguinetti v. United States, 264 U.S. 146 (1924), which held that, to constitute a taking, flooding must present “an actual, permanent invasion of the land,” amounting to “an appropriation of and not merely an injury to the property.” Under these decisions, the Federal Circuit reasoned, an injury is a tort, not a taking, if it is a consequence of temporary flood-control policies. Four judges dissented from the denial of rehearing en banc.
The Supreme Court’s decision in this case will be important to property owners affected by flood-control policies of the Army Corps of Engineers and other government agencies. Depending on the analysis employed by the Court, the decision may also affect a broader class of temporary takings claims.
Absent extensions, which are likely, amicus briefs in support of the petition will be due on May 24, 2012, and amicus briefs in support of the respondent will be due on June 25, 2012. Any questions about the case should be directed to Dan Himmelfarb (+1 202 263 3035) in our Washington, DC office.
In the last two weeks the Supreme Court has invited the Solicitor General to file briefs expressing the views of the United States in the following cases of interest to the business community:
American Trucking Associations, Inc. v. City of Los Angeles, No. 11-798: The questions presented are (1) whether an unexpressed “market participant” exception exists in 49 U.S.C. § 14501(c)(1) and permits a municipal governmental entity to take action that conflicts with the express preemption clause, occurs in a market in which the municipal entity does not participate, and is unconnected with any interest in the efficient procurement of services; (2) whether a required concession agreement setting out various conditions a motor carrier must meet to serve a particular port imposes any requirements that are “related to a price, route, or service of any motor carrier” for the purposes of preemption under 49 U.S.C. § 14501(c)(1); and (3) whether permitting a municipal governmental entity to bar federally licensed motor carriers from access to a port operates as a partial suspension of the motor carriers’ federal registration, in violation of Castle v. Hayes Freight Lines, Inc., 348 U.S. 61 (1954).
Bowman v. Monsanto Co., No. 11-796: The question presented is whether the Federal Circuit erred by (1) refusing to find patent exhaustion in patented seeds even after an authorized sale and by (2) creating an exception to the doctrine of patent exhaustion for self-replicating technologies.
Tarrant Regional Water District v. Herrmann, No. 11-889: The questions presented are (1) whether Congress’s approval of an interstate water compact that grants the contracting States “equal rights” to certain surface water and provides that the compact shall not “be deemed . . . to interfere” with each State’s “appropriation, use, and control of water . . . not inconsistent with its obligations under this Compact” manifests unmistakably clear congressional consent to state laws that expressly burden interstate commerce in water and (2) whether a provision of a congressionally approved multi-state compact that is designed to ensure an equal share of water among the contracting states preempts protectionist state laws that obstruct other states from accessing the water to which they are entitled by the compact. Mayer Brown LLP represents the petitioner in this case.
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Mayer Brown's Supreme Court & Appellate practice distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community and distributes a Docket Report-Decision Alert whenever the Court decides such a case. We hope you find the Docket Reports and Decision Alerts useful, and welcome feedback on them (which should be addressed to Andrew Tauber, their general editor, at firstname.lastname@example.org or +1 202 263 3324).
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