Property Rights Under Water at the Supreme Court

Over at the Bloomberg View, I call attention to the Obama Administration’s attempt to convince the U.S. Supreme Court that the federal government can deny landowners the use of their property for years — decades if need be — without ever paying compensation.

The issue arose in Arkansas Fish & Game Commission v. US, a case under the Takings Clause of the Fifth Amendment, which allows the government to take private property for public use, provided that it provides “just compensation.”As I reported earlier, the government maintains that it does not owe compensation to landowners for flooding their land because the flooding went on for “only” six years. 

That was bad enough, but at oral argument, Deputy Solicitor General Edwin Kneedler insisted that when the federal government adjusts the “benefits and burdens” of living along a river, it can never be liable for compensation, even if its actions cause permanent flooding of private property. Why? Because people who live near a river know they might get flooded. If the Court buys this argument, the Takings Clause will suffer a mortal blow. You can read the full analysis here.

  1. The King Prawn

    At least after Kelo the states could shore up property rights. This will be a death blow. Perhaps it’s time for another amendment along the lines of “We really, really, really meant all those other things in this document.”

  2. Lavaux

    So if one undertakes the risk of state-caused flooding by owning riverfront property, then one also undertakes the risk of drone bombing by owning property adjacent to a weapons testing range, right? Sounds reasonable to me.  

  3. Adam Freedman
    C
    Lavaux: So if one undertakes the risk of state-caused flooding by owning riverfront property, then one also undertakes the risk of drone bombing by owning property adjacent to a weapons testing range, right? Sounds reasonable to me.   · 3 minutes ago

    Very reasonable!  Of course, when conservatives point out that people who choose to live on the Gulf Coast accept the risk of natural disasters, we’re heartless monsters.  But people must accept the risk of government-caused disasters. 

  4. Eeyore
    Keith Bruzelius: Prof. Epstein also comments on this here:

    Thanks, Keith. I couldn’t imagine he wouldn’t be speaking on the issue.

  5. EJHill

    The government has confused themselves with God. What else is new?

  6. Eeyore

    I hope this takes things in the same direction as did Sackett v EPA. I suspect Obama had the His Highness Is Not Pleased look for that.

    Hmmm, wait, a Takings issue. I think I hear Professor E. clearing his throat in the next room. Is that the rustle of a Blue Yeti being placed in front of him? “Adam Freedman replaces Troy Senik as host for our next Law Talk…”

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