The US Supreme Court handed down its decision in the property-rights case, Arkansas Game and Fish Commission v. United States.  This case involved the federally owned Clear Water dam on the Black River that the Army Corp of Engineers periodically opened to release water. Over several years the Army Corps decided to release water over longer periods of time, which helped some farmers but interfered with timber growth on the Dave Donaldson Black River Wildlife Management Area, owned by the Arkansas Game and Fish Commission. Under the dynamics of stream flow and hydraulics, the result was higher water levels downstream, and long-term flooding of the state property during the critical growing period. The question was whether this temporary but repeated flooding constituted a taking, which would require the federal government to compensate owners for the loss of use of their land while it was flooded. Justice Scalia noted during oral argument, while dams and other public-works projects may benefit citizens in general, if they harm an individual owner it’s only fair for that owner to be compensated: “I mean, the issue is who is going to pay for the wonderful benefit to these farmers. Should it be everybody, so that the Government pays, and all of us pay through taxes, or should it be this — this particular sorry landowner who happens to lose all his trees?” "You knew when you opened up the dam that this is where the water was going to go," Chief Justice John Roberts said to a federal government lawyer. "Your position seems to be that if it's downstream, somehow it's not the government's water," said Justice Anthony Kennedy. "It's like the old moral refuge that the rocket designers take: I only make the rockets go up; where they come down is not my concern." The US Solicitor General made a "remarkable argument" that even permanent flooding caused by a federally owned dam could never be considered a taking because the landowners should have predicted that the dam risks causing such flooding downstream and dams are otherwise so beneficial. The government went beyond what was logically required to make its point, and its extreme position likely contributed to its failure to win any justices over. Justice Ginsburg, in her opinion, noted the novelty of this argument, even in the context of this case — it appears to have never been fully articulated until oral argument. The Court only went so far as to decide that the Fifth Amendment’s Takings Clause doesn’t have a blanket exception for temporary flooding, especially in light of the fact that flooding in general and other temporary takings still do trigger that clause. We should be pleased to see that the Supreme Court rejected this preposterous expansion of the government’s ability to destroy or render useless privately or state-owned land. The Constitution's Fifth Amendment forbids "private property be taken for public use without just compensation." Even thought the land in question is state property, all sides have treated the land as "private" in nature for purposes of settling the "takings" dispute. |
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