In one of the first cases it heard in its new term, the U.S. Supreme Court plunged into the murky task of determining whether damage caused by federally directed flooding is a "taking" of private property.

The court heard oral arguments on Oct. 3 in Arkansas Game & Fish Commission v. U.S. The commission contends that water releases from an Army Corps of Engineers dam in six consecutive years destroyed valuable timber. The commission says the flooding is a property "taking," which under the Fifth Amendment would require compensation. But the federal government disagrees, contending that the flooding was temporary and that there was no taking.

During the hour-long session, justices searched for a benchmark to delineate when flooding qualifies as a taking. Though the justices posed the question multiple times and in various ways, the attorneys' answers didn't appear to satisfy them.

Associate Justice Anthony M. Kennedy put the issue directly to attorney James F. Goodhart, who represented the Arkansas commission. Kennedy said what he wanted is "the definition of the operable baseline that what we can use in order to define whether or not there has been a taking." Goodhart replied, "I guess I must say it may not be a bright line."

In questioning Goodhart and Deputy Solicitor General Edwin S. Kneedler, who represented the federal government, the justices raised a variety of hypothetical examples and asked whether those situations met the definition of a taking.

For instance, Chief Justice John G. Roberts Jr. asked Kneedler, "So, if the government comes in and tells a landowner downstream that every March and April we are going to flood your property so that you can't use it from now on ...that's a taking for those two months, correct?"

Kneedler said it wasn't a taking but rather "a classic example of the government adjusting benefits and burdens."

A decision in the case is expected in the coming months.