Supreme Court Expands Scope of Takings Clause

December 10, 2012

By Lars Etzkorn

This week, the U.S. Supreme Court expanded the definition of a taking of property, thus opening the door for increased claims against local and all other levels of government.

The Court's unanimous decision in Arkansas Game & Fish Commission v. United States reverses prior rulings that only a permanent government-caused taking can give rise to a claim for just compensation under the Fifth Amendment of the U.S. Constitution. Here, an Arkansas state agency sued the U.S. Army Corps of Engineers for harm done from temporary recurrent flooding that was induced to prevent damage down-stream.

Local governments have an interest in this case because any expansion of the scope of the Takings Clause is a threat to their fiscal health and ability to govern. More specifically, a variety of government actions (for example, inspections of private property and storm water management) involve temporary physical invasions of private property.

In a small gain for governments, the Court held that compensation is due only when an owner is deprived of all reasonable use or value of the property instead of just suffering any impairment to the value or the utility of the land.

NLC joined the International Municipal Lawyers Association in filing a brief with the Court to protect local revenue and to ensure judicial deference to policy determinations by local governments. Associate Justice Elena Kagan recused herself.