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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