Friday, October 5, 2012
The good folks over at Volokh recap the oral argument in Arkansas Game and Fish Commission v. United States, a case about whether government actions that impose recurring flood invasions must continue permanently to take property within the meaning of the Takings Clause:
Even some of the liberal justices seemed skeptical about the government’s remarkable argument that flooding caused by a government-built dam can never be considered a taking of downstream property owners’ land, even if the flooding is permanent. Deputy Solicitor General Edwin Kneedler claimed that such flooding was an inevitable result of operating dams in such areas in the first place, and was justified by the great benefits created by the dams.
But none of this proves that there was no taking. The fact that flooding is inevitable once the government builds and operates a dam does not mean that the resulting invasion of downstream owners’ property is not a taking. Intrusions on property owners’ land are often an inevitable result of building roads in populated areas, including roads that create major public benefits. But that doesn’t mean that such construction is not a taking.