It’s Spring!

This week is spring break for me. And spring weather came just in time!

Here in the middle of the country, we’re enjoying sixty degree weather, and drying out after all our snow melted and a couple of days of steady, soaking, puddle-making rain. I went for a long walk around Cape Girardeau yesterday and noticed that lawns are soaked, park areas are muddy, and our creeks and rivers are leaving their banks. Indeed, according to a post on the US Army Corps of Engineers Memphis District Facebook page, the Mississippi should crest later this week (on the 19th at Cairo at 47 feet, and on the 20th at New Madrid at 35 feet).

Warm and dry sounds good to me.

There’s a few things happening out there in the world worth noting:

Cycle Pam Hits Vanuatu

Those of you watching the news the last several days know that a major cyclone has hit the island nation Vanuatu in the South Pacific. The BBC has some coverage of the damage here. Cyclone Pam was a Category 5 storm, and the worst tropical cyclone in the South Pacific since 2002. The Economist explains some of the characteristics of Pam that made it “out of the ordinary”. Relief efforts have begun, with various organizations beginning work in the area, including Australia’s Red Cross and financial assistance from Australia, New Zealand, Britain. When I have more information concerning relief efforts, I will post it.

New Madrid Quake Potential

The US Geological Survey released an update to their National Seismic Hazards Map in February. The NMSZ includes southeast Missouri, northeastern Arkansas, western Tennessee, western Kentucky, and southern Illinois. The Missouri Department of Natural Resources says that it is the most active seismic zone east of the Rockies. The new USGS hazard map is an update from their 2008 map. In line with some recent scientific studies, they’ve elevated the potential for a serious earthquake in southeast Missouri. I blogged about some of that research several months ago. The Southeast Missourian summarized the report and discussed the possible ramifications for the region here. For my readers interested Emergency Management and FEMA’s recent work to prepare communities for various hazards, the predictions and findings of this work is especially important. For the more technically minded, the USGS’s Earthquake Hazard Program  provides further information.

Perez v. Mortgage Bankers Association

People who are interested in FEMA, Emergency Management and administrative procedure (including those of you who, on occasion, participate in Notice and Comment and attend public hearings on various administrative/regulatory issues) should be interested in hearing that the US Supreme Court ruled recently in Perez v. Mortgage Bankers Association that administrative agencies no longer have to provide notice and comment when they change an interpretive rule. So, first, what is an interpretive rule? It is an interpretation of a regulation or law, designed to clarify the law/regulation. Here’s a more detailed explanation. Under the Administrative Procedure Act, there is no requirement that interpretive (or interpretative) rules go through Notice and Comment, but past Supreme Court precedent maintained that when an agency had provided a ‘definitive interpretation’ that then, at a later date, they decide to change, they should go through Notice and Comment to provide those affected with an opportunity to receive advance notice of the change and provide public comment. In Perez, however, after citing another famous administrative law case, Vermont Yankee, the Court says that Notice and Comment for interpretive rules is not required. An agency can simply change the rule without advance notice and public comment.

Commentators around the Internet have voiced concerns about the significance of this ruling for its impact on the process to change administrative policy. Some of those concerns include pragmatic political concerns: while it may make changing administrative policies faster and make administration more flexible, a new administration will be able to reverse or change policy much more quickly as well. Along with that, changes that do not bring advance notice strike me as being problematic for stakeholders in general (because it could destabilize expectations concerning what the policy is and whether it will change suddenly); and in regulatory areas such as land use and environmental concerns, where administrative agencies must coordinate with one another as well as state and local officials, lack of advance notice — even just the potential of a lack of advance notice — is likely to create both political and legal difficulties. For a discussion of some of these issues as well as some of the other matters that seem to be looming on the Court’s horizon, see Brian Wolfman and Bradley Girard’s excellent discussion at Scotusblog. Leland Beck also provided some interesting insights here.

(And for those readers interested in administrative law issues, Beck’s blog, Federal Regulations Advisor, is an excellent resource!)

Arkansas Game and Fish Commission v. US: Intentional Flooding & Judicial Power

A week or so ago, Ronald Rotunda wrote a brief piece looking at Supreme Court cases in which the Solicitor General’s position had been unanimously rejected by the Court. The Solicitor General represents the Government in Supreme Court litigation. It’s an interesting list, and well worth reading through. What caught my eye, however, was that the first case he describes is the takings case, Arkansas Game and Fish Commission v. United States decided by the US Supreme Court in 2012 (568 US __ (2012); see the page here for more details about the case. My citations below reference the Supreme Court’s Slip Opinion).

The case involved a forested area owned by the Arkansas Game and Fish Commission that was periodically flooded by the US Army Corps of Engineers. The repeated, temporary flooding damaged the trees and affected peak timber growing season. The Arkansas Commission filed a takings claim against the US Army Corps of Engineers. They claimed that the area had been damaged permanently by the Corps’ program of intentional flooding, and therefore the Commission was due compensation for their losses.

In her opinion, Justice Ginsburg points out that not only did the flooding adversely effect the growing season for the valuable trees; it changed the character of the terrain substantially. Those changes, she said, caused the state to engage in costly reclamation measures. While the case was remanded for further review (including investigating some claims made by the Government that had not been fully contemplated by lower courts), Justice Ginsburg made a very clear point in her opinion – and again, a unanimous decision – there is no “blanket temporary-flooding exception” in takings clause jurisprudence.

Why was it necessary for the Court to take a firm stand on this point? There was a precedent from 1924 that, according to the Government, established a rule that temporary flooding designed to protect the public interest was free of a takings examination in the courts. In short, they argued that the Government could indeed intentionally flood areas temporarily in order, for example, to facilitate flood control. In the Government’s understanding of this precedent, damage done to land was not compensable because it was done in the public interest of flood control (or other public works). Indeed, lawyers for the Government appear to have read one particular passage in the case as suggesting that, except when it could be shown that the flood was “the direct result of the structure,” and constituted a “permanent invasion of the land”, there could be no takings claim – whatsoever.

In reading the case law differently than the Government, Justice Ginsburg, intriguingly, points out that the precedent the Government relied on most heavily, Sanguinetti v. United States (264 US 316, 1924), predated cases that establish the contemporary jurisprudence on temporary takings (“Sanguinetti was decided in 1924, well before the World War II-era cases and First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 428 US 304 (1987), in which the Court first homed in on the matter of compensation for temporary takings. There is no suggestion in Sanguinetti that flooding cases should be set apart from the mine run of takings claims…” Slip Opinion, p. 2). This is intriguing because there is a long line of old precedents pre-dating contemporary jurisprudence that concern themselves specifically with flooding. Justice Ginsburg’s comment suggests that, perhaps, the Court would be willing to revisit others should industrious lawyers be able to argue that those cases are no longer in line with contemporary takings cases.

The Government also argued in their briefs that allowing takings claims in intentional flooding circumstances would result in the filing of takings claims that would make programs such as flood control difficult to implement. They suggested, as the Government often does, that accepting the plaintiff’s view would result in a slippery slope in which flood control and other programs would become all but impossible due to all of the takings claims made against them. Justice Ginsburg asserts that this is not the case:

“The slippery slope argument, we note, is hardly novel or unique to flooding cases. Time and again, in Takings Clause cases, the Court has heard the prophecy that recognizing a just compensation claim would unduly impede the government’s ability to act in the public interest,” (Arkansas Game and Fish Commission, Slip Opinion, p. 12). Indeed, citing a case in which the “slippery slope” argument was made in dissents, Justice Ginsburg pointedly comments, “The sky did not fall after Causby v. US (328 US 256, 1946) and today’s modest decision augurs no deluge of takings liability” (Slip Opinion, p. 12).

Why no deluge? Why wouldn’t the decision make flood control more difficult?

Well, first, takings clause cases are notoriously difficult to win. This is partly because, especially in instances where regulatory takings or temporary takings occur, it is very difficult to fully document what has been taken. This makes determining “just compensation” difficult. If the value of the land is completely wiped out, as required under Lucas v. South Carolina Coastal Council (505 US 1003), it becomes easier to calculate what must be compensated. But anything less than a total wipe-out becomes difficult.

The Supreme Court has said that temporary takings can be compensated (Causby v US), and they certainly recognize the possibility that while title in land may remain with the original owner a regulation can create a taking (multiple cases on this point, but look at Pennsylvania Coal Co. for the beginning of the contemporary doctrine). The Court has also said that the decision of whether a taking occurred will depend upon “a complex of factors” designed “to prevent the government from ‘forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole,’” (Palazzolo v. Rhode Island (533 US 606, 2001), quoting Armstrong v. US (364 US 40, 1960)). In the reality of takings litigation, this means that the amount of detail required in the presentation of facts makes winning a takings case difficult (but not impossible).

What the justices did — unanimously — in Arkansas Game and Fish Commission v. US was provide the opportunity for plaintiff-owners whose land is intentionally flooded to show that their claims rise to the level of a takings claim through this intensive litigation process. Put another way, the Court has provided owners an opportunity to show that the all the factors, taken together, support the argument that they have been “bearing burdens which, in all fairness and justice, should be borne by the public as a whole.”

It is a high bar to pass, but one that is possible. As I have written elsewhere, takings litigation takes years, sometimes even decades, as it did with Palazzolo v. Rhode Island. It requires a patient plaintiff and industrious lawyers. Given the costs associated with these types of cases (experts being necessary to prove/disprove the claims, there’s often scientific studies of effects on land/terrain and ecosystems, etc.), most owners are not likely to file lawsuits, and lawyers are unlikely to take them on. Lower courts will vet the lawsuits for threshold issues first, and then for all of the facts in order to determine whether that “complex of factors” exists. It’s not an easy process for anyone. The cases that will make their way to decisions by judges or juries, or find their way into appellate courts, will likely be complex and unique. But these characteristics – complexity and uniqueness – are the hallmarks of most cases that make their way to final decisions and appellate courts. “Typical” disputes end early. “Difficult” disputes take a lot longer.

However, this litigation will be a bit of a pain for government lawyers. Had the Government prevailed in Arkansas Game and Fish, the lawyers who defend takings cases in the Justice Department would not have to worry about intentional flooding cases. It would have removed a set of cases and claims from their docket, providing them an easy way of getting rid of complaining owners. That, in turn, would have sent a message to those administrators involved in flood control and other wetlands policies that they did not need to worry about a judicial check on their activities. In a sense, then, the Court maintained its power just a little bit by making it clear that, whether plaintiffs will prevail or not, takings cases will remain within their purview. Checks and balances are maintained by Arkansas Game and Fish by maintaining the Court’s ability to decide a certain type of case.