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United States Supreme Court Confirms Right Of Just Compensation For Temporary Physical Invasions

In a unanimous 8-0 ruling, the United States Supreme Court today confirmed that the Fifth Amendment mandates the payment of just compensation for permanent as well as temporary physical invasions of property. Back in 1987, the United States Supreme Court confirmed that just compensation is required for a permanent or temporary regulatory taking in First English Evangelical Lutheran Church v. Glendale, and today the same has been confirmed for a temporary physical taking.

In Arkansas Game and Fish Commission v. United States the plaintiff contended that the United States Government was liable in damages under the Fifth Amendment  on the ground that six years of periodic flooding during the sensitive growing season by the Army Corps of Engineers destroyed 18 million board feet of timber and left habitat unable to regenerate.

The Court of Appeals denied recovery of damages on the theory that only a permanent physical invasion of property can give rise to a taking under the Fifth Amendment, and that this invasion must amount to a total appropriation of property, not merely an injury.  The United States Supreme Court roundly rejected this theory, concluding in part that none of the Court’s decisions authorizes a blanket temporary-flooding exception to the Court’s Tak­ings Clause jurisprudence, and that the Court declines to create such an exception in this case. The Court also cited the First English case as precedent. In short, there was no reason to exclude flooding from any other invasion of property.

This case should put the final nail on the coffin of governmental attempts to dodge the Fifth Amendment’s just compensation requirement by appealing to the temporary nature of the intrusion.  First English and  Arkansas Game and Fish Commission are fitting bookends on the issue.

If you have experienced a government taking which limits the use of your property, or if your have experienced property rights infringement, call the land use lawyers at Kassouni Law for an evaluation of your legal matter (877) 770-7379.

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