They Were Paying Attention in Math Class

Posted on April 9, 2013 by Brian Rosenthal

Late last year, the United States Supreme Court used a mathematical hypothesis to solve a takings question involving environmental damage.  Remember the transitive property of equality?      

                                                A=C,  B=C, so A=B [and =C]

The Court summarized its opinion by noting: 

a government-induced flooding can constitute a [compensable] taking (A=C);
a temporary act can be a compensable taking  (B=C); so
a government-induced flooding even as a temporary act (A=B) may be a compensable taking [=C].

In takings analysis, flooding cases hold no special exempt footing.  Floodings need not be permanent or inevitable to result in a constitutional taking.  Seasonal, recurring flooding (similar to a repetitive flight overhead that interrupts a property’s intended use) can be a taking based on the facts and circumstances, like time and degree of interference, character of the land, reasonable investment-backed expectations and foreseeability.  See Arkansas Game and Fish Commission v. United States.



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