Supreme Court Sides With Property Owners In First Case of Takings Trilogy

Dec 6, 2012

The U.S. Supreme Court ruled that the Arkansas Game and Fish Commission could sue the Army Corps of Engineers for compensation for flood damage from Clearwater Dam in Missouri. Map: United States Geological Survey.

If the federal government destroyed your property by flooding it, you’d probably expect that they would be required by the U.S. Constitution to compensate you for your property loss. Remarkably, in the first of a trio of property rights cases to be decided by the Supreme Court this term, the federal government argued that it had no obligation to compensate property owners in such scenarios. On Tuesday, a unanimous U.S. Supreme Court rejected the government’s theory – an important victory for those who support property rights.

We’ve blogged recently about the other two cases in the Court’s Takings Clause trilogy.  (As a refresher, the Takings Clause says the Government must compensate people if it “takes” their land or other property).  Our first blog highlighted a government program that mandates that raisin farmers have to give the government half their crop; last week we blogged about a case which looks at whether denying a permit to develop private land is a taking.  The cases in the Takings Clause Trilogy all turn on how broadly or narrowly the Court interprets what a “taking” is under the Constitution.

The ruling in Arkansas Game & Fish v. United States arises out of the U.S. Army Corps of Engineers decision to experiment with a flood control plan it created for managing a dam in Missouri.  The Corps’ original plan was developed in the 1940s and was used without deviation until the 1990s when, at the request of some local farmers, the Corps decided to try something new.  That something new was a experiment to tinker with the amount of time the Corps would flood the area downstream from the dam.  The Commission, which owned a large plot of land downstream that it used to grow timber, adamantly protested the experiment because extending the flood time would have devastating consequences for the Commission’s timber crop.  The Corps decided to proceed with the experiment, found out it didn’t work, and returned to the 1940s plan.  The Commission was left with thousands of dollars of damage as a result of this experiment and sued the Corps for compensation under the Takings Clause.

The U.S. Supreme Court unanimously re-affirmed that property owners like the Commission have a right to seek compensation from the government when the government “takes” their property – even if it’s allegedly a “temporary” taking. We’re now anxiously awaiting the next two installments in the Supreme Court’s “Takings Trilogy” this term.

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