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.