The U.S. Supreme Court has taken on the slippery task of defining federal "takings" of private property when it comes to a particular type of flooding. On Oct. 3, the justices heard oral arguments in a case focusing on water releases from an Army Corps of Engineers dam in Arkansas that flooded timberland owned by an Arkansas commission.
But after the justices peppered attorneys from both sides with questions during the hour-long session, that definition seemed elusive.
In the case, Arkansas Game & Fish Commission v. U.S., the commission contends that water releases from a Corps of Engineers dam in six consecutive years destroyed valuable timber. The commission argues that the flooding constitutes a property "taking," which under the Fifth Amendment would require compensation.
The federal government contends there was no taking, stating that the flooding was temporary.
Through much of the oral argument, justices searched for a benchmark to determine what does and doesn't constitute a taking, when it comes to such flooding.
Associate Justice Anthony M. Kennedy, who at times has been the swing vote between the court's conservative and liberal contingents, told attorney James F. Goodhart, who represented the Arkansas commission,
"what I want is the definition of the operable baseline that 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."
Justices quizzed Goodhart and Deputy Solicitor General Edwin S. Kneedler, who represented the federal government, seeking to get a fix on a guideline. They raised several hypothetical examples, asking, essentially, "What about this situation...is that a taking?"
Though the justices posed the question multiple times and in various ways, the attorneys' answers didn't appear to satisfy them.
For instance, Associate Justice Samuel A. Alito, Jr., asked, "Should the baseline be what would have happened if the dam was never built?"; Goodhart answered, "Perhaps, your honor."
Associate Justice Antonin Scalia asked Goodhart about a situation in which flooding prevented the owner from using it for a period of time: "You couldn't plant anything on it. You couldn't picnic on it....would that have been a taking?" Goodhart said no.
When it was Kneedler's turn, Chief Justice John G. Roberts, Jr., asked him, "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, one of the first the court has heard in its new term, is expected in coming months.