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.