Owners’ Counsel of America Files Amicus Brief with the U.S. Supreme Court in Arkansas Property Rights Case

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Owners' Counsel of America, a nationwide network of eminent domain attorneys, has filed an amicus brief in support of the Arkansas Game & Fish Commission urging the Supreme Court to reverse a Federal Circuit Court decision which prohibited the recovery of just compensation for the taking of private property.

This case presents the Supreme Court with the chance to clear up takings law and insure than when the government destroys private property, it has a constitutional obligation to compensate the property owner.

Last week the Owners’ Counsel of America filed an amicus curiae brief in support of the property owner in Arkansas Game & Fish Comm'n v. United States, No. 11-597 (cert. granted Apr. 2, 2012) urging the United States Supreme Court to reverse a decision by a Federal Circuit Court which erroneously found that the federal government’s recurrent flooding did not constitute a compensable taking of private property simply because of its temporary nature. At issue in this case is whether government actions that cause recurring floods must be intended to be permanent in order for the property owner to recover just compensation under the Fifth Amendment.

“This case presents the Supreme Court with the chance to clear up takings law and insure than when the government destroys private property, it has a constitutional obligation to compensate the property owner,” said Robert H. Thomas. Thomas, an attorney with Damon Key Leong Kupchak Hastert in Honolulu, and the Hawaii member of Owner’s Counsel, prepared and filed the brief.

The brief argues that "[w]hen property is damaged permanently, as were petitioner's trees, there is no principled distinction between a physical invasion that is permanent and compensable, and an invasion that is claimed to be temporary and is not." As an organization that has long advocated for private property rights, Owners’ Counsel, through its brief, asks the Supreme Court to clarify this issue by reaffirming that all “direct and substantial” physical occupations of private property, even if temporary, are takings requiring the payment of just compensation.

Petitioner Arkansas Game & Fish Commission, a state agency charged with overseeing the protection, conservation and preservation of various species of fish and wildlife in Arkansas owns and operates 23,000 acres of land as a wildlife refuge and recreational preserve. AGFC filed an inverse condemnation action to recover compensation from the federal government for physically taking its hardwood trees within the Dave Donaldson Black River Wildlife Management Area through six consecutive years of protested flooding during the sensitive growing season. The flooding, while temporary in nature, destroyed and degraded more than 18 million board feet of timber, left habitat unable to regenerate and prevented the use and enjoyment of the area.

“The claim that government officials intended to flood the land only temporarily shouldn’t matter, what is important is the fact that the federal government permanently destroyed the trees,” said Thomas.

The Court of Federal Claims awarded AGFC $5.78 million in just compensation, finding that the flooding actions of the Army Corps of Engineers constituted a taking of private property for which damages are recoverable. That award, however, was overturned by a divided appeals court which ruled that the flooding was not a taking because it was not permanent and eventually stopped.

“The Federal Circuit got it backwards,” said Thomas. “The government cannot avoid liability for a taking when it floods property simply by asserting that it did not intend for the invasion to be permanent. Temporal claims are less important than the actual permanent damage inflicted by the invasion.”

"My sincerest hope is that the U.S. Supreme Court will rule in favor of the Petitioner in this case and in doing so will underscore the importance of one of our most fundamental rights as citizens of this great country -- private property ownership," said Arkansas eminent domain attorney and Owners' Counsel representative Michael B. Phillips. Phillips and Brandon K. Moffitt of Moffitt & Phillips, PLLC in Little Rock joined Mr. Thomas on the brief.

"A win for the Arkansas Game & Fish Commission is a win for property owners everywhere," said Phillips.

A decision from the Supreme Court is expected in the fall.


The Owners’ Counsel of America http://www.ownerscounsel.com is a nationwide network of the country’s most experienced eminent domain attorneys dedicated to protecting the rights of private property owners large and small, locally and nationally, and to furthering the cause of property rights. The lawyers affiliated with Owners’ Counsel are in private practice in nearly every state and represent landowners against federal, state, and local governments, utilities, redevelopment authorities and other entities that may possess the power of eminent domain.


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Catherine T. Newman

Robert H. Thomas
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