Supreme Court sides with private property against the federal government

posted at 6:01 pm on December 4, 2012 by Erika Johnsen

We’ve got to celebrate the freedom-endorsing little victories won by the Supreme Court while we’ve still kinda’-sorta’ got it (one shudders to think of what what the highest court in the land may look like after four more years of President Obama), and the justices logged one in favor of private-property rights with their unanimous decision on Arkansas Game & Fish Commission v. United States on Tuesday.

Per the Takings Clause of the Fifth Amendment (“nor shall private property be taken for public use, without just compensation”), the question was whether a series of floods coordinated by the U.S. Army Corps of Engineers qualified as an actual compensation-worthy taking, since the effects were temporary in nature (although, according to the Court’s opinion, the authorized flooding disrupted the peak growing season for timber and damaged or destroyed more than 18 million board feet of timber over seven years!). As one unit, SCOTUS affirmed that the federal government’s actions did indeed amount to a taking:

What the government taketh, the government must pay for.

That was the 8-0 ruling of the Supreme Court on Tuesday in a case that involved water, water everywhere for Arkansas wildlife officials for several months a year from 1993 to 2000 — water released at a federal dam that flooded state forest land and made it temporarily unusable. …

Justice Ruth Bader Ginsburg, writing for the full court except for Justice Elena Kagan who did not take part in the case, said the government’s actions did amount to a taking.

More from the Court’s opinion, delivered by Justice Ruth Bader Ginsburg:

Because government-induced flooding can constitute a taking of property, and because a taking need not be permanent to be compensable, our precedent indicates that government-induced flooding of limited duration may be compensable. No decision of this Court authorizes a blanket temporary-flooding exception to our Takings Clause jurisprudence, and we decline to create such an exception in this case. … There is thus no solid grounding in precedent for setting flooding apart from all other government intrusions on property. And the Government has presented no other persuasive reason to do so. Its primary argument is of the in for a penny, in for a pound genre… 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.

Sorry, federal government — your seemingly tireless efforts to restrict private-property rights got the smackdown, at least for today.


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I see little to celebrate here. The almighty SOCIALIST BIG GOVERNMENT still gets to takes what it wants, and then just borrows money from the chicoms or lets bailout bernanke print it to “pay” for their theft.

TeaPartyNation on December 4, 2012 at 6:06 PM

This ruling is just to give them cover of being unbiased

ObamaCare finishes off individual liberty in Teatermerica!

The damage is done.

PappyD61 on December 4, 2012 at 6:06 PM

I have to let this sink in. I’m so used to fighting every branch and agency of our government I don’t know quite how to react.

darwin on December 4, 2012 at 6:07 PM

This case and the older one of Duquesne Light (9-0) will create some interesting precedent if Obamacare tries to drive the insurers out of the market by regulating them out of any profit.

Wethal on December 4, 2012 at 6:08 PM

Kelo-riffic.

/whoop-ti-do

rayra on December 4, 2012 at 6:09 PM

Doesn’t matter, with inheritance taxes set to soar, income taxes going up, Obamacare still whole and set to gut our take-home pay. We lose our property anyway.
It’s time folks. It is PAST time.

rayra on December 4, 2012 at 6:11 PM

This case and the older one of Duquesne Light (9-0) will create some interesting precedent if Obamacare tries to drive the insurers out of the market by regulating them out of any profit.

Wethal on December 4, 2012 at 6:08 PM

pssst. They’re already being regulated out of customers, via forced 40%++ increase in premium costings. And that’s besides the pre-Obamacare phony territorial restrictions which limited their markets already.

rayra on December 4, 2012 at 6:13 PM

“Apart from that Mrs. Lincoln…

… how did you enjoy the play?”

Seven Percent Solution on December 4, 2012 at 6:13 PM

Let me get this straight. The Federal government floods state controlled land and the court orders them to pay. So, now we the people have to pay for the Federal government to pay the State of Arkansas and we are supposed to be happy about it?

I’m not feeling the “private property” love with state owned land.

LoganSix on December 4, 2012 at 6:13 PM

pssst. They’re already being regulated out of customers, via forced 40%++ increase in premium costings. And that’s besides the pre-Obamacare phony territorial restrictions which limited their markets already.

rayra on December 4, 2012 at 6:13 PM

Certainly.

Yet I wonder if they’ll sit by and let this happen, realizing they got played by Obama to support Obamacare, or wake up and see where their business is going. The recent announcement on “fees” for the exchanges might have given them another clue.

Wethal on December 4, 2012 at 6:16 PM

I wonder if the government can take one of your kidneys with “just compensation.” Under Obamacare, we may find out.

Glenn Jericho on December 4, 2012 at 6:17 PM

the full court except for Justice Elena Kagan who did not take part in the case

So now she has the balls to step aside when there’s a conflict??

BUCK FARACK

Nutstuyu on December 4, 2012 at 6:18 PM

CLINK! I give you that and raise my glass.

Thank you SC on this! May this be but a many you give to private against big bro/bho/team!
L

letget on December 4, 2012 at 6:20 PM

What’s not being asked, and no I haven’t read the decision, was this flooded area wholly within the borders of Arkansas? If so, WHAT THE HELL WAS THE FEDERAL GOVERNMENT DOING HAVING ANY INVOLVEMENT AT ALL??!?!?!?!?!?

This is why the FG needs to be drastically reduced. If the land involved doesn’t cross over two or more state borders, or the border of another country, then the feds should GTFO!!!!!11!11!!eleventy!!

Nutstuyu on December 4, 2012 at 6:22 PM

…and BUCK FARACK by the way.

Nutstuyu on December 4, 2012 at 6:23 PM

You know what? … I’m happy …
.
( waving my little “Droopy Dog” flag )

… Hooray.

listens2glenn on December 4, 2012 at 6:23 PM

That headline… .. . You got that from the onion, right?

yenober on December 4, 2012 at 6:25 PM

Fox is talking about this now. Thank goodness we have someone/media that will?
L

letget on December 4, 2012 at 6:25 PM

When did state owned land become private property?

xblade on December 4, 2012 at 6:25 PM

Oh, so you’re saying a politically connected developer wasn’t after this property?

/not really feeling the joy

M240H on December 4, 2012 at 6:26 PM

They can still mandate that we do whatever the hell they want us to do. Next to that, I’m not seeing how this means much of anything.

besser tot als rot on December 4, 2012 at 6:30 PM

Erika, why do we have to shudder at what the SCOTUS will look like. That is giving up the ship. If in fact we take back this country through another revolution, it will be what we want it to be. I think the attitude that things will just float along to their natural ends is somewhat fatalistic. I realize that the elephant in the room that no one wants to bring up ,,the fact that it may take bloodshed to renew the republic,,,,is a scary thought, but that may need to happen. The political framewrk of checks and balances, press, etc, that the Founders set up is broken. It may very well take another violent revolution to fix it.

retiredeagle on December 4, 2012 at 6:31 PM

When did state owned land become private property?

xblade on December 4, 2012 at 6:25 PM

This is the new HA meme. Ed was pushing it the other day (yesterday?).

besser tot als rot on December 4, 2012 at 6:31 PM

is erika all excited now? like she was with mitt?

when i hear scotus i laugh. they are bought and paid for. scumbags.

renalin on December 4, 2012 at 6:33 PM

Doesn’t matter, with inheritance taxes set to soar, income taxes going up, Obamacare still whole and set to gut our take-home pay. We lose our property anyway.
It’s time folks. It is PAST time.

rayra on December 4, 2012 at 6:11 PM

Pretty much..

Tim Zank on December 4, 2012 at 6:35 PM

Private Property?

When you need a $200,000 heart surgery and the Feds will only pay for $25,000 because you’re over 40 and you have used your “lifetime health credit” where will you come up with the money?

You’ll have to SELL YOUR PRIVATE PROPERTY.

The Ruling class has destroyed the Middle class intruders with ObamaCare.

Property?………meh.

PappyD61 on December 4, 2012 at 6:35 PM

oh, man! i just threw up. dragging around a half dead bob dole, so that kerry can showcase the cripple he made fun of. niiiiiiiiiice.

did they switch a cup for a pen today.

renalin on December 4, 2012 at 6:37 PM

And what if you can’t come up with the money??????

“Take the pain pill”—Dr. Obama

PappyD61 on December 4, 2012 at 6:37 PM

This case and the Sackett case from last term aren’t a reversal of Kelo, but still are promising.

Wethal on December 4, 2012 at 6:40 PM

rayra on December 4, 2012 at 6:11 PM

oh yeah. long past due. be patient. a significant number of us aren’t feeling it yet. wait till the earners get a hold of what really is in store for them.

renalin on December 4, 2012 at 6:41 PM

State property is not the same as private property but this expands the definition of taking …a little.

The water was released from a federal dam in order to help private farmers downstream but damaged state property in doing so. The matter is between two branches of government and doesn’t involve any compensation for private property. The only private property in this case involves farms which probably aren’t going to enjoy extra water again because the federal government will have to compensate the state for the collateral loss during future releases. Not exactly an outcome that will have corks popping for the private property owners involves.

Where is the ideological conflict in this case? The 8-0 ruling would suggest there isn’t one.

lexhamfox on December 4, 2012 at 6:42 PM

the 8-0 ruling of the Supreme Court

BRAVO. There is hope.

Merry Christmas to US!

locomotivebreath1901 on December 4, 2012 at 6:43 PM

WHAT?

The SCOTUS actually sides with the American people?

Did you get this from The Onion, Erika because this seems too good to be true. Especially with an 8-0 ruling.

Kingfisher on December 4, 2012 at 6:50 PM

rayra on December 4, 2012 at 6:11 PM

oh yeah. long past due. be patient. a significant number of us aren’t feeling it yet. wait till the earners get a hold of what really is in store for them.

renalin on December 4, 2012 at 6:41 PM

It had better come soon, before the engineered collapse, while we still have some wherewithal, mobility, enough health wealth and food left to fight. They’re already engaged in a long campaign of impoverishment, disarmamament and immobilization. Making it more difficult and expensive to move about the country. Setting long term archival of our online activities (and now with a 2yr texting archival bill). Working at disenfranchisement via massive voter fraud. Not-so-stealthy inflation on food costs. Federal Reserve manipulations that are leading directly to a Weimar / hyperinflation collapse.
When if finally comes, too many of the too few will even have the means to assault the tyrants.

rayra on December 4, 2012 at 6:50 PM

Can the federal legislature order you to buy appropriate safety equipment of equal or greater value than the compensation, and then fine tax you if you don’t?

OK, now I’m just whining. :)

I meant:

YAY!

Axe on December 4, 2012 at 6:51 PM

“[fill in the blank]_________ vs. United States”

More and more, our own country is our enemy.

rrpjr on December 4, 2012 at 6:51 PM

Anybody as Souter and O’Conner for their opinion???

patch on December 4, 2012 at 7:05 PM

rayra on December 4, 2012 at 6:50 PM

funny thing is someones reading our posts and thinking we’re nuts. i only wish.

renalin on December 4, 2012 at 7:09 PM

(one shudders to think of what the highest court in the land may look like after four more years of President Obama)

Hint: Kiss your right of self-defense goodbye.

I foresee lots of ‘Boating accidents’ over the coming years..

Chip on December 4, 2012 at 7:21 PM

The SCOTUS actually sides with the American people?

Kingfisher on December 4, 2012 at 6:50 PM

Pretty sure they sided with government over government. Either way, government was going to win.

besser tot als rot on December 4, 2012 at 7:24 PM

Oh gee Judge Roberts; did ya throw us a bone, did ya, did ya? Pffft, you ruined our Nation Sir and that is precisely how history will record the beginning of our end. Didn’t think you’d be on that side of history did ya. Well you so deserve it. I can’t even think about this.

Tangerinesong on December 4, 2012 at 7:30 PM

The SCOTUS actually sides with the American people?

Kingfisher on December 4, 2012 at 6:50 PM

Pretty sure they sided with government over government. Either way, government was going to win.

besser tot als rot on December 4, 2012 at 7:24 PM

…if the case had involved an ‘individual’ or a corporation…the vote would have gone the other way…

KOOLAID2 on December 4, 2012 at 8:14 PM

Bob Costas calls Jovan Belcher commentary “a mistake”
http://www.washingtonpost.com/blogs/early-lead/wp/2012/12/04/bob-costas-calls-jovan-belcher-commentary-a-mistake/

And what, exactly, is Costas’s position on gun control? He said he draws a line at semi-automatic weapons.

“Here’s where I stand: I do not want to see the Second Amendment repealed. … People should be allowed to own guns for their own protection. Obviously, those who are hunters. … Access to guns is too easy in some cases. I don’t see any reason a citizen should be able to arm himself in some states in ways only police or military should — to have a virtual militia [by] mail order or gun shows. Why do you need a semi-automatic weapon? What possible use is there?

Does this Obama Voter even know what is a semi-automatic weapon?

According to ATF, 73 percent — or more than 1 million guns sold in the U.S. in 2006 — were semiautomatic pistols.
http://www.foxnews.com/story/0,2933,377203,00.html

That’s in the case of pistols – it would seem like he wants at 73% of the guns sold today to be banned – how is that being in favor of the second amendment?

Chip on December 4, 2012 at 8:25 PM

Chip on December 4, 2012 at 8:25 PM

Whoops, wrong thread.

Chip on December 4, 2012 at 8:29 PM

Sorry, keep your olive branch, you ba$tards. You will never be able to live down your Obamacare fiasco. You wrote it, you own it.

2ndMAW68 on December 4, 2012 at 8:59 PM

So, if this decision is applied to ‘flooding’ the CA valley with drought to protect some ‘fish’ … you get what?

IMHO, the problem with this sort of decision is those making the dumb call, either singly or as a collective econut bureaucracy, don’t really face the consequences of their call — it comes down to us taxpayers to bail their sorry green asses out.

Seems like things would be more judiciously balanced if a bureaucracy loses such a case due to a bureaucratic “we can do no wrong” regulatory mentality, that the money to pay for penalties owed due to their collectivist malfeasance ought to come out of their own collective pensions.

If the burrocrats have some skin in the games they play, they’ll be more cautious about over-stepping their charge.

Just saying… If a private firm did this sort of stuff as a matter of company policy, there wouldn’t be any taxpayer bail out.

drfredc on December 4, 2012 at 10:43 PM

Would you like to be reimbursed with magic beans or fairy dust since that’s all the governments got, prezzy said so.

Kissmygrits on December 5, 2012 at 8:33 AM

A great decision. Now when are they going to rule on the cities and towns taking land for private purposes.

OT, with apologies to Hot Air, for the last two days, Diplomad2.0 has really really good and interesting posts. However, he sounds a little down, so why don’t you give him some hits to cheer him up. IMHO, Diplomad 2.0 is a tremendous compliment to HA. They or Glenn Reynolds should get a few posts from him to broaden their information base.

Old Country Boy on December 5, 2012 at 8:37 AM

EXTRA! EXTRA! Read all about it!

Mini-Leviathan beats Leviathan concerning Leviathan-y type stuff in Leviathan’s own court!

Subjects rejoice but don’t really know why…

Minarchy on December 5, 2012 at 9:12 AM

Weak tea in the wake of Kelo.

The Schaef on December 5, 2012 at 10:23 AM

What the government taketh, the government must pay for.

And with what money…? Robbing Peter, paying Paul, etc…

labrat on December 5, 2012 at 11:17 AM

So does this mean those that the government deliberately flooded last year outside Cairo and in the Atchafalaya Valley will finally get the compensation they deserve?

agmartin on December 5, 2012 at 1:19 PM