The Supreme Court recently decided the case I previewed some months ago: Arkansas Game and Fish Comm. v. United States. The Court held that government-induced flooding — even if temporary — can amount to a constitutional “taking” – an important landmark for property rights, even if the Justices did not go far enough in protecting property rights. On this podcast, I discuss the ruling with the Manhattan Institute’s Jim Copland
In the Arkansas 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 intermittent 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 the Federal Circuit reversed, holding (as some liberal jurists insist) that the Constitution’s Takings Clause is triggered only by a permanent deprivation of property — and six years ain’t permanent.
Before the Supreme Court, the government took an extreme position, holding that government induced flooding can never — I repeat NEVER — give rise to a Takings claim by the unlucky downstream property owners. The Supreme Court rejected the government’s position and did so — mirabile dictu — unanimously, in an opinion written by none other than Justice Ginsburg.
Alas, the Court did not go as far as it should have. The Justices reversed the Federal Circuit’s decision — good — but then remanded the case for further consideration of such factors as whether the flooding was “intentional” or “foreseeable.” Thus, the Court has perpetuated the multi-factor balancing test for takings that tends to favor the government. As our own Richard Epstein (who literally wrote the book on takings) correctly argues, this mish-mash of factors is needlessly ad hoc. As Richard posits, the Court should endorse the overarching principle that, “The only things that the federal government can do without having to compensate are the kinds of things that private parties can do without having to pay compensation.”
Still, the Court did shoot down the Federal Circuit’s categorical rule that “temporary” flooding can never be a taking, as well as the government’s contention that it should never be liable for downstream damage. It’s a step in the right direction and the Court’s unanimity will protect this precedent from future attack. Two cheers for the Supreme Court.