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The Obama administration tried last week 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.
Deputy Solicitor General Edwin Kneedler advanced this remarkable proposition during oral argument in Arkansas Game and Fish Commission v. United States, a case involving the damage wrought by the Army Corps of Engineers in its operation of the Clearwater Dam in Arkansas.
From 1993 to 2000, the Corps’ management of the dam caused regular flooding of a 23,000-acre wildlife-management area, killing trees and depriving the commission of revenue from timber sales.
Fortunately, the Constitution provides a remedy for such abuses: the Fifth Amendment’s takings clause, which requires the government to pay “just compensation” when it takes property for public use.
The Supreme Court long ago established that citizens can suffer a “taking” within the meaning of the Fifth Amendment, even if the government does not literally seize their property. In the 1871 case of Pumpelly v. Green Bay Co., the court held that government-caused flooding can constitute a taking – rejecting the outlandish argument that a property owner should have no remedy as long as he still holds title to his (now submerged) land.
Before the oral argument, the only serious legal question was whether eight years of intermittent flooding met the definition of a taking. Some Supreme Court precedents have suggested that such “regulatory takings” must be permanent in order to trigger the Fifth Amendment’s compensation requirement.
Even on that narrow question, the federal government had a weak argument. There was nothing temporary about the damage caused by the Corps: The deceased trees are permanently dead; the lost timber revenue is gone forever.
The federal government, however, came to the Supreme Court with a much more sweeping argument. Even if the Corps had permanently flooded the plaintiff’s property, Kneedler said, there would be no Fifth Amendment taking because people who live on a flood plain are aware of the risks of inundation. “When you live on a river and you know the consequences of having a flood-control project on the river, that’s what happens.”