By David Baake
The Fifth Amendment’s Takings Clause provides that private property shall not be “taken for public use, without just compensation.” For most of American history, the Supreme Court construed this clause narrowly, requiring the government to pay compensation only where it permanently appropriated or destroyed property. During the twentieth century, however, the Court began to embrace a significantly broader interpretation of the Takings Clause. In 1922, the Court introduced the concept of regulatory takings, holding in Pennsylvania Coal Company v. Mahon that the government was required to pay compensation if its laws or regulations went “too far” in redefining the range of interests included in the ownership of property. A series of cases during the World War II era established that the government was required to retroactively compensate a property owner for a temporary physical taking. And in 1987, the Court combined these two innovations, holding in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles that the government was required to retroactively compensate a property owner for a temporary regulatory taking.
Last Term, in Arkansas Game and Fish Commission v. United States, the Supreme Court was required to consider the continuing validity of this last development. The Court was confronted with two conflicting precedents: First English, which established the general availability of retroactive compensation for temporary regulatory takings, and Sanguinetti v. United States, a 1924 case holding that the Takings Clause did not require compensation for government-induced flooding unless the flooding constituted a “permanent invasion of the land.” The Court reaffirmed First English while rejecting Sanguinetti, holding by a vote of 8-0 that the federal government was required to retroactively compensate a landowner whose property it temporarily took by flooding.
In this Comment, I argue that the Arkansas Game and Fish Court erred in applying First English without first addressing its continuing validity. Even assuming that First English was correct when it was decided in 1987 — something that is far from clear — it is doubtful that it remains so today. Since First English was decided, the Court has radically reduced the availability of implied damages relief for other constitutional violations. I argue that there is no principled basis for treating temporary regulatory takings differently from other constitutional violations; hence, limiting the availability of implied damages relief under First English is necessary to achieve doctrinal consistency. Further, limiting First English is desirable from a policy perspective, as this would return the question of compensation for temporary regulatory takings to the political process, allowing federal, state, and local governments to balance the public’s interest in regulation with the interests of individual property owners on a case-by-case basis.
Cite as: David Baake, Arkansas Game and Fish Commission v. United States, 37 Harv. Envtl. L. Rev. 577 (2013).