hill but for the fact that today is a district meeting of the board of commissioners we are before the or this morning determine the answer to the question does arkansas saw mission gain commission vs the united states overrule the illinois supreme court's holding practices rosenfield the temporary flooding is not a take putting that question in and context is do these agencies does the district and do these other agencies committed taking land property experiences private property experiences temporary flooding perfectly for this or for two reasons one it was the scholarship of your power or that correctly identified what we are referring to as the limited lock step be reexamined even for the sake of argument if it did apply or does apply it the reality is that the cases arkansas hampton that we rely upon clients and jaclyn that the cases are both factually and equally distinguishable and again everyone is entitled to an opinion but my opinion when i read teleports scholarship is is this they're telling me what are you folks doing here you don't belong here you belong up stairs this is an issue for the  domain proceedings and and damages oh i think the easy one both the united states supreme court and this have consistently held that if you experience a taking that is those are direct damages so to speak or incidental damages if your property on the other hand in illinois is armed and damage but not taken your remedy is the action of at law that's provided for in the constitution and that translates to what port tort case it's always taking of your property eminent domain and presumably mandamus damage to your property constitution the custom and practice of the courts and last but but not least the constant the constitutional convention is in the  the language certainly i think we all agree that the language of the illinois constitution differs from its federal counterpart in that we do embody that extra provision pertaining to damage to the property again in the reason for that in illinois is as i've said a couple of times property taken eminent domain action sixty years the custom and practice in illinois has been to make that distinction iraq and its progeny to make that distinction  are the efforts of our colleagues at all i mean is that actually did that your problem of the research with us but but in to give credit where credit is due they performed that research and went back to clearly that it was the legislature's intention that our constitution be construed different than that then it's then it's federal setting aside limited live stuff for the moment even for the sake of argument if you found it limited lock step did apply or in the alternative if you wanted to treat in a vacuum yeah and the reality here is the cases are factually and legally distinguishable the cases being arkansas fish and game are the grade of the roadway changed somewhat and some of the all this innes's experienced some degree of flooding during a temporary rain temporary flood should say very positive here i think we can all agree by like clockwork every six or seven years and essentially the same time of the year with  notice to all involved they opened the floodgates if you will and the water property farmland and some ranch land the water property to the detriment that the army corps of engineers intended to do this they intended to inundate this property what the or what justice ginsbur this for f consistently well there is a legal distinction between incidental or direct damages if you will like those will that we that we see in the in the basement in the basement says it is obviously our belief that trial or should have value districts dramatically different than the cause of action underlying arkansas vision even in the absence of right your honor's question that would be our that would be our position certainly i don't want to be a revisionist do we believe the right is dispositive yes of course but by the same token we also believe even in the absence of right as i said because these cases are councils finance because their cause of action is factually and legally stable shabelle from the so called government induced flood predicated i mean an existing section of the district's original enabling twenty seven section in the evening legislation so all section nineteen that still exists and as well as the thirty seven other plaintiffs in the class that we seek to represent i'd like to before i start thank you for taking the time to honor this case with the review of the highest court land i want to thank you on me ha that when you say temporary taking i still when i say temporary taking at least one arkansas game and fish says i'm very taking it is still a physical intrusion on property and taking on the less i guess is a temporary duration constitutional argument that the one nine hundred seventy constitutional convention delegate foster was talking as it was posed several different scenarios or hypotheticals about what the images would say and i think that they contemplated both under a taping or under were properties in which there would be not only the direct images as could be estimated by an accountant to the actual property itself but also consequential damages such as a moving expenses or other things that were not directly related to the taking itself but i'd like to back up for a second base under question the question here today is does arkansas game official rule people etc privately rosenfeld that temporary floodings can never be taken and the answer to that question must be yes and the reason for that is that as mr zale mentioned this court has informed us on approach but it's the name of it has been given limited lockstep and what that really means or how this court has applied is that if a provides more protection than the federal powers are because not only does it protect against damages or excuse me takings but it also protects against damages but let me back up to arkansas game fish because that's what we're here to talk about government induced funding temporary integration against no automatic exemption from taking laws inspection and the reason for that is that as they said later page or five between there is no magic formula that allows a court to judge in every case whether it's giving government interference is of property is taking and i think when mister was able to answer your question regarding  chief justice question i believe regarding is he saying that every temporary funding can never be attained he answered that question in the affirmative and that proposition that the end of your views putting before this court is in direct violation discriminate with the difference far be it from me to tell the court how to do it but i think the an excellent guide post for an excellent start to the now says is to simply look to arkansas game and fish into the four factors that they outline to determine whether or not a temporary funding would be a tape they talked about time they talked about government intent or foreseeability to their actions they talked about the severity of the interference all of these factors are incredibly important and also incredibly restrictive you know i'm kind of bouncing around but since you've asked me that question it is important to address the the two guiding points that arkansas game and fish gave us and which is well so all is that the takings clause is designed to our government from forcing some people alone to  all fairness and justice should be borne by the public as a whole and when the government physically takes possession of an interest in property for some public purpose it has a categorically you did duty to compensate the former owner if you go all the way out which is i think the very first us supreme court decision that talks about these rights abuse of the flooding it's heat in seventy two they talk about the importance of guarding against these individual rights these individually protections of the federal constitution are is the lowest common denominator of the protections that should be afforded residents of illinois and to the extent that there are additional damages these special the images that are talked about contemplated by the courts are constitution convention the court is free to provide more protection and set up more protection above the takings but it really gets away work which is the central question that would follow from the over and that is what is taking arkansas game and fish talks about the only one we're taking close the language pretext of both against taking in damage to private property for  let's talk about that for a second i guess takings are take so they can't be denied the must right if you say ok it's not a taking is it here how are you going to classify ninety seven it was a regulatory thing and both this court and united states supreme court have drawn some parallels between regulatory takings particularly those are temporary integration and temporary funding plans because in both those instances you are acting a taking on a property interest with out taking private or depriving the owner of those interests of the either the property or the right and in that case they talked about there was a california law and the california supreme court has ruled if you have a regulation it takes a property interest from in that case it was the the right to develop certain property that was a long riverbed in the other reasoning is that in coming back to my original point under the violence you know the limited box that the only basis to depart from lockstep particularly with regard to the fifth the men one in particular i think this is a phrase that right that it taking has to be a permit in order to qualify as taking that was rejected you know once a government's action has worked at taking on a property no subsequent by the government can relieve it of the duty to provide that compensation again a lot of these takings claims revolve on the just compensation claim because if you have a takings but you don't get your remedy then your constitutional right has not been  damages if it's not a tape again i believe a court has to make a determination first and that's what arkansas again officials the you can't have a blanket exemption a court has to actually analyze the facts and make a determination whether the taking has her or not and only if a taping has not occurred to me then proceed to the damage analysis but my position is but the damage is still it constitutional pla the facts of the case brought up some other issues you know the facts of the cases are not before this court it's only the certified question but i do have to say that the characterization that came decision they decide that they do not want to flood multibillion dollar public assets of o'hare airport and rather that they want to store those floodwaters on my clients on private property they do that by releasing tens of millions of gallons directly into these two small creek salt creek in addison creek that are effectively two miles long drainage ditches that run from o'hare airport down to this plaines river and when they do that these small creeks that are no longer than a single lane of highway no deeper than bench that runners are sitting on go from simply being at the top of their banks which is true during heavy rain event two homes three blocks away having flood water up to the second adams and that flood happens in less than half an hour it's not the result of rain it's not the result of anything other than the fact that they the i mean everybody has made the decision image my working class clients homes instead of flooding do you hear airport and that's exactly the facts that they were discussing the supreme court in arkansas eating fish because army corps of engineers made the decision that they did not want to flood these other farmers or other interests and the specifically released the flood water onto the state of arkansas and then into your point what is the distinction between damage and taking certainly where he lived again or claim that we changed the title of property as the state of arkansas did in arkansas game fish they can still have claim for taking and not images because in that case they're timber they had timber interest sons lands and when the flooding entered on to that land it destroyed the economic viability  in arkansas game officially said that's a taking you should get compensation for that here in our case where my clients homes were completely destroyed by this flood even though the flood waters retreated the damage was permanent and these people many of i sat in their living rooms of talk to them something many are retirees they had to use all of their entire life savings just to rebuild their house and they bore all that expense on their own because the m w r d acted in the public interest of saving o'hare airport and because of that i'm not i'm not criticizing them to be ready for doing that they're entitle to act within the public interest but that public interest does not does not defeat the premise of the of the and that's read versus village sure would that's been recognized by least half a dozen federal circuits including the six the tenth and so in closing the only issue before this court is to answer the hear and regrettably you know our society say that someone or something is is discrimination free but i am urging to them or that that is the case in the context of the customers taxpayers of the villages of the three villages in which they reside on the global scale they are or the customers are all over the state of illinois he's our customers please please don't get me wrong i'm not urging you we do the best we can as a new legal standard by by any means obviously both parties that are before you what they lie and might very well be dispositive but we're not working so hard really to make people whole i mean that's what this is about right if it's under the takings clause the homeowners may stand to benefit if it's under if least there would be a fight as to whether or not toward immunity would apply and damages are not the fact that the illinois constitution may provide damages at least in this instance with the water justice freiman if he's asked a couple times what difference does it make you know what difference should it make to the point is well it's the difference between recovery and in a new lease europe and you know recovery is it's our greater chicago will be taken under advisement as agenda number ten mr zabel mr dunn thank you for your arguments this morning you're excused this time it's marshal the court's stands adjourned until nine thirty am on march twenty second