December 07, 2012
On 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.