SUPREME COURT:

Justices wade into dispute between Army Corps, Ark. over flooded habitat

The Supreme Court agreed today to take up a dispute between the Army Corps of Engineers and the state of Arkansas over alleged damage to a wildlife and hunting reserve.

The Arkansas Game and Fish Commission has alleged that the federal government took some of its property without just compensation, which would constitute a violation of the Fifth Amendment of the Constitution.

The U.S. Court of Appeals for the Federal Circuit disagreed in a March 2011 ruling in which the three-judge panel was split 2-1 (E&ENews PM, March 30).

Justice Elena Kagan has recused herself from the case, Arkansas Game & Fish Commission v. U.S., most likely because she was involved in the litigation in her previous position as solicitor general.

The alleged taking took place at the Black River Wildlife Management Area between 1993 to 2000 as a side effect of the Army Corps' attempts to manage the Clearwater Dam on the Black River in Arkansas.

The commission claimed that by deviating from the plan that outlined how and when water was released from the dam, the Army Corps was responsible for increased flooding in the preserve, which had a negative impact on the timber harvest there.

The U.S. Court of Federal Claims initially awarded almost $5.8 million to the commission after concluding that the flooding constituted a taking.

In the appeals court ruling, Judge Timothy Dyk wrote in the majority opinion that under Supreme Court precedent, a taking occurs if there is "an actual, permanent invasion of the land," which did not happen in this case because the flooding was temporary.

In its petition, the commission stressed that clarification in the law is needed in order to determine what kind of "physical invasion" is required for there to be a taking

"Certainly not every government invasion of property constitutes a taking," the commission's lawyer, Julie DeWoody Greathouse of Perkins & Trotter in Little Rock, wrote. "But the core Fifth Amendment standards do not suffer the government a free license to temporarily invade private property."

The commission has the backing of the Association of Fish and Wildlife Agencies. Its lawyer, Michael Shannon of Quattlebaum, Grooms, Tull & Burrow in Little Rock, argued in his brief that there is a "gap in the law regarding temporary physical takings" that needs to be filled by the high court.

The uncertainty in the law "deeply affects the management of hundreds of dams and millions of acres of land throughout the United States," Shannon added.

The National Association of Home Builders and the American Forest Resource Council also support the Arkansas agency.

In arguing against Supreme Court review, Solicitor General Donald Verrilli said the federal circuit ruling "is correct and faithfully analyzes the Corps' temporary and ad hoc water releases under this court's longstanding principles distinguishing between mere temporary flooding episodes and the sort of continuous or inevitably recurring flooding that rises to the level of a taking."

In a statement, the Arkansas commission's chief legal counsel, Jim Goodhart, said officials are "very pleased" that the Supreme Court has decided to hear the case.

"We just want to right the wrong caused by the U.S. Army Corps of Engineers' flooding and subsequent timber damage to one of Arkansas's -- and this country's -- celebrated waterfowl habitat areas," he added.

The Supreme Court will hear arguments in the case this fall.

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