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 Oyez.org 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.

Regulatory Takings: Pennsylvania Coal Co. v. Mahon

Why, precisely, did I have so much trouble with takings cases, particularly regulatory takings all those years ago? Why do I still heave a heavy sigh whenever I am faced with a new one? Well, back in the 1980s, when property movements were really getting their litigative feet under them, Carol Rose of Yale Law School wrote a wonderful essay titled, “Mahon Reconstructed: Why the Takings Issue is Still a Muddle.” (52 S. Cal. L. rev. 561, 1983-1984). After I reading this essay I ended up reading a lot of Professor Rose’s work. This essay, and one of her books in particular, Property and Persuasion: Essays on the History, Theory, and Rhetoric of Ownership, shaped my thinking about takings quite a lot. It was published by Westview Press, 1994 — it’s out of print now, but if you can find a used copy, I recommend it!

Since I am not a lawyer, I have never been particularly interested in making arguments about what I think a particular litigant deserves as relief or why they should receive it. I am interested, as a social scientist, in the way law develops over time; and in particular, how society is shaped by whatever the law says. I’m curious to know the degree to which the identity of actors such as property owners, lawyers, or administrative agency officials, is formed (sometimes impacted, sometimes indirectly influenced) by the law. Sometimes all this becomes very focused on whether the development of the law provides not only opportunities for making claims but also actually constructs the interests and issues that individuals (most likely owners in my research) are confronted with in their day-to-day experience with the government. The interest in government is the political scientist coming out, but the rest is all thanks to my training in sociolegal studies.

At any rate, takings proved especially complicated in this regard because property exists at such a very deep and fundamental level in our society. What I found so interesting about Carol Rose’s work was that, at least in this essay, she did not try to expound a new theory of takings that if adopted would solve all takings woes. Instead, she took a step back and asked why “takings” in law had become difficult to define. Put in her own words: she wondered the “possible reasons for the elusiveness of the meaning of ‘taking’ in our law” (p. 561). Instead of following a worn route through a law review article, one that would involve making an argument about what the courts “should” do, Professor Rose raised a question that was much more empirical in nature: how? How does the confusion concerning what a “takings” is actually arise out of the law? In formulating an answer, she had to take a look at the doctrine around what we today call regulatory takings to see when and where the “muddle” began. Her answer began with a case decided in 1922, Pennsylvania Coal Company v. Mahon (260 US 393, 1922).

Mahon is a case I love to teach, not least of all because my undergraduates and graduate students come to have a much better understanding of the term “undermine” after they become familiar with the facts of the case. Let me explain…

The decision in the court case, authored by the eminent Justice Oliver Wendell Holmes, came to the Supreme Court on appeal from the Supreme Court of the Commonwealth of Pennsylvania. Pennsylvania had passed the Kohler Act in 1921. The Act was designed to address a problem the state had long had: soil subsidence from mining coal. Large stretches of Pennsylvania are rich in anthracite coal deposits and so mining companies, including Pennsylvania Coal, had long been mining these areas. However, mining practices at the time often involved mining under (or undermining) roads, towns, and other areas, creating what some would call “surface support problems,” or what others might see as big, giant holes. The surface of the land when it lost too much of its support below would fall into the ground creating big holes. If a house, for example, were sitting on the pocket that collapsed then the house would fall, crashing into the hole. Whole towns, in fact, had been subject to subsidence — that is to say, they had begun to fall into holes created by undermining the surface to such an extent that there was not enough earth to hold it up anymore. If you’re trying to picture this, here’s a link that may help.

Mrs. Mahon’s father had purchased the surface of a residential lot in 1878 from Pennsylvania Coal. The company had retained the subsurface mineral rights. In the deed her father had waived all claims against Pennsylvania Coal due to subsidence of the surface. This meant that the coal company had retained both the subsurface mineral rights as well as the support rights to the land. This was perfectly acceptable in Pennsylvania law because the common law recognized three “estates” in mining property. An “estate” in land law means, in essence, an interest you can own. In Pennsylvania, as Professor Rose explains what the three interests were in Pennsylvania law: “first, an estate in the surface, second, an estate in the minerals below, and finally an estate in the support of the surface (the third estate)” (p. 563). In other words, if you purchased land from a mining company, you purchased only an interest in the surface, while the interests in the minerals and support of the surface remained with the original owner, i.e., mining company. This was intended to enable mining to continue, even as use of the surface was given to a new owner.

After a few decades of undermining (and watching citizens and local governments suffer its consequences) the state legislature attempted a remedy through legislation. The Kohler Act addressed the danger of subsidence by making it impossible to sever the surface estate from the estate in the support. Thus, the act passed by the state legislature was attempting to change a common law right in property that had long been recognized in Pennsylvania law.

Though Professor Rose does not make much of this, the political scientist in me is always fascinated by attempts made by one branch of government to change something another branch of government has maintained for a long time. The fact that the subsidence problem was widespread and was a major social and economic problem in Pennsylvania strikes me as clear from the court records, particularly given that the trial court had found that the act was likely unconstitutional, while the commonwealth’s Supreme Court found that the statute was “a legitimate exercise of the police power.” Again, the political scientist in me perks up: not only is one branch of state government attempting to change a longstanding position of another, but we have economic interests in mining going toe-to-toe with reformist attempts in the state legislature to exercise a power that is clearly given to the states in the federal constitution.

Wanna guess what happens? Here’s a hint, based on my anecdotal observations (not empirical research and data collection): when you have major economic interests doing battle with the police power in a state, the economic interests tend to win. Not always, but most of the time.

Back to the case: Mrs. Mahon and her husband took up residence on the lot her father had purchased, claiming title through the 1878 deed. When, in September 1921, the Mahons were informed that the company intended to undermine their land the Mahons sued under the recently passed Kohler Act. They were hoping to keep the company from mining in such a way that would cause their residence to fall into a hole created through soil subsidence. Here we have an attempt by individual owners to call directly upon a newly passed state statute in order to claim a brand new version of property rights in Pennsylvania in order to save a home from the damaging effects of behavior acted out by a corporate entity exercising its common law right. This is the sort of legal drama we make movies out of — if only we could understand the case…

So what happened? Justice Holmes wrote for the majority. He was a writer of some of the most cogent, eloquent, and interesting decisions of all time at the Supreme Court level, but in this case he wrote one of the most muddled, farcical and complicated decisions that has plagued us ever since. I recently told a student that all writers have a bad day from time to time. Frankly, I think Justice Holmes was having a very bad writing day (and his good friend, Justice Louis Brandeis, seemed to think so as well given his dissent — which will be subject of my post in two weeks).

Justice Holmes came up with what we call today the “diminution of value” test for regulatory takings of property. He said that exercises of the police power could devalue property without being a takings under the Fifth Amendment. Some diminution was okay, he said, but when that value is diminished too greatly it triggers the takings clause and that requires there be some sort of just compensation. How much is too much? Well, here is his sense of the situation:

“When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act.” It’s my favorite line in the whole case. In her essay, Professor Rose also quotes a second restatement of the rule as it occurs at the end of the same paragraph: “[W]hile property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”

Pausing for a minute, let’s recap Justice Holmes’s views: how much of value must be taken to trigger the takings clause? “A certain magnitude”. Must there be compensation in every case? No… But more often than not since “in most if not all” suggests that it might be most, but it may well not be all cases that trigger the takings clause. And in the second restatement of this rule, how much regulation is allowable? The answer is “to a certain extent”. When is there a taking? “if regulation goes too far”.

Clear as mud!

But let’s look at the full passage from the case where Justice Holmes makes these statements — it’s the last paragraph of the case, and the most important one:

“The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. It may be doubted how far exceptional cases, like the blowing up of a house to stop a conflagration, go — and if they go beyond the general rule, whether they do not stand as much upon tradition as upon principle. In general it is not plain that a man’s misfortune or necessities will justify his shifting the damages to his neighbor’s shoulders. We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change. As we already said, this is a question of degree — and therefore cannot be disposed of by general propositions.”

If we parse that paragraph a little, it’s easy to conclude that Justice Holmes, while determining to strike down the Pennsylvania statute was also intentionally vague. It’s really the only explanation for a writer — any writer, let alone one so eminent — to be so very ambiguous. He steps away from creating a “general proposition” that can guide us in understanding “to what extent” a regulation must diminish value; and, he also steps away from saying “when” compensation may be required. He really only says that if it goes “too far”, then it triggers the takings clause and just compensation. The question arises, of course, who gets to decide what constitutes “too far” if we have no clear understanding of it from this decision? Clearly not the state legislature since their law was just struck down. It appears as though J. Holmes, intentionally or unintentionally, made this a question for the courts.

In her essay Professor Rose also pointed out something that is easily missed in this discussion: “what property is relevant in a takings discussion?” (566-567). Remember that we have, here, mineral rights, support rights and surface rights. Three different parts of the land that could be used and sold as separate bits of property. For Holmes, the only property that seemed to matter was the right to the support, which under the Kohler Act became part of the surface rights the Mahons possessed. In his view, the Kohler Act worked a takings of all the rights the company had — a complete diminution of value, as Professor Rose points out. That the act was designed to protect the surface rights of individuals living, working, and using the land in various ways what mattered to the Court was only the reduction in value to the mining company of its rights under the act. This meant that the changing value of the house on top of the land when it fell into the hole caused by subsidence was not really a part of his calculation.

Justice Holmes’ good friend, Justice Louis Brandeis dissented in this case. In my next post, I’ll give you a sense of what divided these two good friends on this particular issue. Mahon, however, became the basis for a long list of regulatory takings cases in the twentieth century, and if you look back at my discussion of Annicelli, you can see it lurking there in the background. But as you can see in Annicelli in the late twentieth century, as courts sought a principle that was easier to apply, they considered a complete diminution of value (which Holmes believed had occurred for the mining company) key to determining when a regulatory takings had occurred. That he left the door open to something less than complete becomes increasingly less important as the century wears on. After I’ve written about the dissent in this case, and as we move forward in time in regulatory takings cases, I’ll show you how this developed.