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Contact: Brian T. Hodges
Managing Attorney - Pacific Northwest Center
Pacific Legal Foundation
(916) 419-7111

PLF statement: Supreme Court refuses to water down the Takings Clause

Arkansas Game & Fish

WASHINGTON, D.C., December 4, 2012: In a major property rights decision, the United States Supreme Court today held that the Takings Clause of the United States Constitution protects against all government invasions of private property, even if the government intrusion is temporary in duration. The decision in Arkansas Game & Fish Commission v. United States reverses a Federal Circuit Court of Appeals opinion that had authorized the government to temporarily flood private property without paying just compensation to the owner.

“The Takings Clause does not come with a stopwatch”

Brian T. Hodges
Managing Attorney

“This decision is an important victory for the rights of all property owners,” said PLF managing attorney Brian T. Hodges, who wrote PLF’s amicus brief in the case. “By expressly rejecting any distinction between temporary and permanent government intrusions on private property, today’s decision closes a dangerous loophole in takings law that could be exploited to allow the government to avoid its obligation to pay just compensation when it takes private property. Simply put, the Takings Clause does not come with a stopwatch. If government commits a taking, including flooding or occupying someone’s land, there is an obligation to pay, period. That obligation doesn’t depend on how long the government uses the property. Imposing arbitrary conditions and limits on the duty to compensate only serves to weaken property rights, and, by extension, all the rights secured by the Constitution.

“Importantly, the Court refuted — in no uncertain terms — the government’s argument that if the Takings Clause is enforced against temporary government intrusions, federal agencies will not be able to carry out their duties,” Hodges said, with reference to this passage from the decision:

The slippery slope argument, we note, is hardly novel or unique to flooding cases. Time and again in Takings Clause cases, the Court has heard the prophecy that recognizing a just compensation claim would unduly impede the government’s ability to act in the public interest. We have rejected this argument when deployed to urge blanket exemptions from the Fifth Amendment’s instruction. While we recognize the importance of the public interests the Government advances in this case, we do not see them as categorically different from the interests at stake in myriad other Takings Clause cases. The sky did not fall after Causby [military overflights effected a taking of neighboring property], and today’s modest decision augurs no deluge of takings liability.

About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation ( is the leading watchdog organization that litigates for limited government, property rights, and a balanced approach to environmental regulation, in courts across the country.

PLF attorneys recently won their sixth direct-representation case at the United States Supreme Court, challenging overreaching government regulations: Sackett v. EPA. PLF’s latest direct- representation case at the United States Supreme Court, for property rights and a balanced approach to environmental regulations, is Koontz v. St. Johns River Water Management District. Oral argument in Koontz will be held at the Supreme Court on January 15, 2013.