The 2013 Takings Triplets: From Exactions to Flooding to Raisin Seizures—Implications for Litigators
The 2013 takings triplets of Koontz, Horne, and Arkansas Game and Fish Commission from the United States Supreme Court augur well for the future of property rights.1 While there was nothing particularly revolutionary in any of the three decisions, a loss in any of these cases could have spelled some serious backsliding for the progress made in the past quarter-century by property rights advocates. Moreover, these decisions helped dissipate some of the pervasive porperty law pessimism that followed from the Court's Kelo decision in 2006.2
Property rights cases have had a long history of incremental twosteps-forward followed by one-step-back progress. First English's doctrinal clarification of the concept of temporary takings was undercut by the extreme equivocation of Tahoe-Sierra.3 The cautious optimism engendered by twenty years of growing respect for property rights at the state and federal level was cast into doubt with Tahoe-Sierra and then cut short by the Court's retreat into the past with Kelo.
3 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 163 (2014)