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Takings of Private Property for Public Use

A Legal Overview of Utah's H.B. 148

Federalist Society White Paper
Donald J. Kochan January 14, 2013

A Legal Overview of Utah's H.B. 148Recent legislation passed in the State of Utah has demanded that the federal government extinguish title to certain public lands that the federal government currently holds.  The State of Utah claims that the federal government made promises to it (at statehood when the federal government obtained the lands) that the federal ownership would be of limited duration and that the bulk of those lands would be timely disposed of by the federal government into private ownership or otherwise returned to the State.  This White Paper provides a legal overview of these claims....[Read Now!]

Arkansas Game & Fish Commission v. United States: A Temporary Fix for Temporary Takings

Engage Volume 14, Issue 1 February 2013
July 01, 2013

Arkansas Game & Fish Commission v. United States: A Temporary Fix for Temporary TakingsThe United States Supreme Court’s decision in Arkansas Game & Fish Commission v. United States is a rare unanimous victory for property rights. The decision is significant because the Court recognized that any government action that interferes with the enjoyment and use of private property can give rise to a takings claim under the Fifth Amendment.  There is no exception for government actions that are temporary in duration.  The Court’s decision closed a long-standing loophole in takings law that had allowed the federal government, as it did in this case, to avoid takings liability for having repeatedly flooded the Arkansas Game & Fish Commission’s land.  The decision promises to be important for all property owners because the Court relied on principles that reaffirm the protective nature of the Takings Clause....[Read More!] 

Arkansas Game and Fish Commission v. United States - Post-Argument SCOTUScast

SCOTUScast 10-03-12 featuring Richard Epstein
Richard A. Epstein October 03, 2012

Richard EpsteinOn October 3, 2012, the Supreme Court heard oral argument in Arkansas Game and Fish Commission v. United States.  The question in this case is whether government action that permits recurring flood invasions of a state wildlife management area--with resulting damage to timber contained therein--must be action of a permanent character to give rise to a takings claim for just compensation.

To discuss the case, we have Richard Epstein, professor at New York University School of Law and professor emeritus at the University of Chicago Law School.

[Listen now!]

Arkansas Game and Fish Commission v. United States - Post-Decision SCOTUScast

SCOTUScast 12-07-12 featuring Richard Epstein
Richard A. Epstein December 07, 2012

Richard EpsteinOn December 4, 2012, the Supreme Court announced its decision in Arkansas Game and Fish Commission v. United States.  The question in this case was whether government action that permits recurring flood invasions of a state wildlife management area--with resulting damage to timber contained therein--must be action of a permanent character to give rise to a takings claim for just compensation.

In an opinion delivered by Justice Ginsburg, the Court held by a vote of 8-0 that temporary and recurring flooding induced by the government is not per se exempt from a takings claim for just compensation.  Accordingly, the Court reversed the decision of the lower court and remanded the case for consideration of the merits of the takings claim. Justice Kagan took no part in the consideration or decision in the case.

To discuss the case, we have Richard Epstein, professor at New York University School of Law and professor emeritus at the University of Chicago Law School.

[Listen now!]

Arkansas Game and Fish: Property Rights in the Supreme Court - Podcast

Environmental Law & Property Rights Practice Group Podcast
Steven J. Eagle, Dean A. Reuter November 14, 2012

Arkansas Game and Fish: Property Rights in the Supreme CourtIn early October, the Supreme Court heard oral argument in Arkansas Game and Fish v. United States. Can the temporary flooding of private property, caused by release of water from a river-regulating dam to relieve pressure on the dam or to aid in downstream water management, be a taking of private property for public use which therefore requires just compensation? This novel question was addressed in the oral argument, and will be answered by the Court when it renders its opinion. Professor Steven Eagle attended the oral argument and gave his report in this special “Courthouse Steps” edition of Teleforum.

Featuring:

  • Prof. Steven J. Eagle, George Mason University School of Law
  • Moderator: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society

[Listen now!]