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U.S. Supreme Court

Deputy SG Argues Temporary Flooding by US Is Not a Taking Requiring Compensation

Posted Oct 4, 2012 8:47 AM CDT
By Debra Cassens Weiss

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Deputy Solicitor General Edwin Kneedler urged the U.S. Supreme Court on Wednesday to rule that temporary flooding caused by the U.S. government is not a taking of private property requiring compensation under the Fifth Amendment.

Kneedler pressed two arguments, the New York Times reports. The first is that temporary flooding is never a taking. The second is that flooding downstream from a dam, rather than a reservoir, is not a taking.

Justice Anthony M. Kennedy responded that the reservoir argument reminded him of “the old moral of refuge that the rocket designers take.”

“You know,” he said. “I make the rockets go up. Where they come down is not my concern.”

The Arkansas Game & Fish Commission says the flooding by the U.S. Army Corps of Engineers, which occurred for three-month periods over six consecutive years, killed thousands of oak trees in its wildlife management area. It is seeking millions of dollars in compensation.

Justice Elena Kagan has recused herself from the case. SCOTUSblog, Reuters and the Washington Post also have stories.

The case is Arkansas Game & Fish Commission v. United States..

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