A New “Takings” Case Headed for the Supreme Court

Imagine that over a six-year period federal government employees regularly came on to your land and chopped down your trees, without ever offering you compensation.  Even if they claimed to be doing so for a public purpose (e.g., clearing the way for a road), you would still expect “just compensation” under the Fifth Amendment. Now imagine, that the federal government intentionally floods your land for six years, killing your trees. Don’t you have the same claim for “just compensation?” 

That’s the issue in a case that the Supreme Court has agreed to hear – Arkansas Game and Fish Comm. v. United States.  In that case, the Army Corps of Engineers (over objections by state authorities) imposed a flood regime on the Black River to benefit upstream farmers.  The result was six years of prolonged flooding, destroying an estimated 18 million board feet of hardwood timber.  The lower courts were split on the takings issue: Arkansas won in the district court, but lost in the Fifth Circuit.  Now the Supremes will turn to an issue that has been percolating since our own Richard Epstein’s 1985 classic Takings – a book that demonstrates how regulatory action can (and often does) constitute a “taking” under the Fifth Amendment. 

In a 1992 decision (Lucas) the Supremes held that a landowner inSouth Carolinahad suffered a regulatory taking, when the state made his property un-developable.  That decision led to a chorus of outrage among the court’s liberals and their academic cheerleaders, all of whom insist that the Fifth Amendment applies only to (in the words of Justice Blackmun) to “direct, physical takings.” After all, if the government had to compensate the victims of confiscatory regulation, well . . . where would we be then?   Unfortunately, the Lucas holding has been severely limited by later decisions. This case is a great opportunity for the Court to get its takings jurisprudence back on track.  Fingers crossed.

  1. Tom Lindholtz

    What are the odds-makers saying on this?  That’d be great if ths could be rolled back.  It would be a stake in the heart of many EPA decisions.

  2. Chris Johnson

    An interesting aspect of these types of cases:

    Regulators talk about how valuable wetlands and flood storage are, in one context, but they don’t directly take the property, so you don’t get compensation for the value the public extracts.  You get no compensation, but keep the right to continue paying taxes on the land; public “value”, individual taxpayer penalty.

    Not too different from having your front lawn declared a public park; you maintain and pay for it and the public litters and tears up your grass.

  3. flownover

    I have property that sits next to a very busy RR track (BNSF) . Their right of ways give them the right to come onto my property and carve it up to grab dirt and stone down to their trackbed whenever they feel like it.Large,monolithic, and now owned by Warren Buffett . Sound familiar ?

    I wonder if I should tell them about the Indian burial mounds on the property or just let Buffett’s TV start flickering ?

  4. SpinozaCarWash

    Paging Justice Holmes–does this regulation “go too far?”

  5. Adam Freedman
    C

    Jordan — exactly right, that was Holmes’ test from the Pennsylvania coal case. But today’s academics tend to brush it aside as one of Holmes idiosyncratic outbursts. In fact, as Professor Epstein (and others) has shown, the common law, which formed the background of the founders understanding, had long distinguished between regulating to prevent public bads like nuisance vs invading somebody’s property rights to promote a supposed public good.

  6. Adam Freedman
    C

    CJ – yes, that is the dynamic. It’s particularly damaging because the EPA and Army Corps of Engineers have construed the Clean Water Act so aggressively that bone-dry land can be a “wetland.”

  7. David Carroll

    So-called liberals have no respect for private property (unless, I suppose, someone steals their smartphone).   In their conception, all property is pubic, for the “public good,” in the persona of a Utopian government that will trample the rights only of others, but is uniformly beneficent to themselves.

    That is why I think that liberals must have some form of mental illness, or at least mental deficit.  They never conceive of their ideal all-powerful government trampling on their rights.

    I am reminded of of a central issue in the health care debate.  If the government can require an individual to buy health insurance, where is the line drawn that separates the enumerated powers from an anything goes standard.  We have the same problem with regulation versus taking.  What is the principle that draws the line between regulation that is not a taking and regulation that is.  All regulation of property restricts the owner’s rights to some degree.  How does anyone articulate a rule to draw that line that is not some case-by-case I-know-it-when-I see-it standard?

  8. Fake John Galt

    From what I can tell, most of those in government believe that they are entitled to take what they want, when they want, from whomever they want and the little people (citizens) better get out of their way and be glad they are allowed to keep what they let them.

  9. SpinozaCarWash

    So I am not entitled to compensation if the government enjoins me from committing a nuisance then I am not entitled to compensation, but condemnation of private property to build a public highway compels compensation. Do I have this correct?

    I have a feeling this is going to come down to whether the petitioner can frame this as a permanent taking in order to escape Tahoe-Sierra. What if the government announces tomorrow that these floods will cease? Under Tahoe-Sierra then the government should win. But what about First English, which cuts the other way. Does anyone pay attention to that case anymore?

    Got your amicus pen ready?

    Adam Freedman: Jordan — exactly right, that was Holmes’ test from the Pennsylvania coal case. But today’s academics tend to brush it aside as one of Holmes idiosyncratic outbursts. In fact, as Professor Epstein (and others) has shown, the common law, which formed the background of the founders understanding, had long distinguished between regulating to prevent public bads like nuisance vs invading somebody’s property rights to promote a supposed public good. · 15 hours ago