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.