Property Rights

Seeking Just Compensation for Damages from Federal Flooding


At the Cato Institute's blog, Ilya Shapiro and Trevor Burrus run down what's at stake in Arkansas Game & Fish Commission v. United States, which the Supreme Court will hear this fall. As they explain, the case centers on property damage caused by a federal flood control project. Under the Fifth Amendment to the U.S. Constitution, when the government takes private property for a public use, the payment of just compensation is required. So the question here is whether this federal flooding resulted in a Fifth Amendment taking. According to the U.S. Court of Appeals for the 5th Circuit, no taking occurred because the flooding was only temporary in nature. Shapiro and Burrus offer a different view:

We argue that the length of time of the government's physical invasion of property should not be used to determine whether a taking occurred, but rather only for calculating how much damage the taking caused. We further argue that the Federal Circuit's focus on the "intent" of the government action—whether the flooding resulted from a "permanent or temporary policy"—is likewise irrelevant to whether a taking occurred. Instead, the inquiry should be whether the government caused permanent damage and, if so, how much. The lower court erroneously created a rule—that so long as it might be "temporary," no government flooding can be remedied under the Fifth Amendment—that runs afoul of a constitutional provision meant to compensate property owners for government intrusions on their land.

Read the rest here.

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  1. How could it not be a taking? If they flooded my house, but only temporarily, it would certainly be a "taking". It doesn't matter what the land is being used for, it's still someone's private property.

  2. I would think this shpuld be relatively clear: any property damage caused by governmental intervention onbehalf of a third party ( in this case mitigating damage to one set of property owners by intentionally allowing flooding of a second, smaller group of land holders) should require compensation for all resultant damage, as well as assessment of rents to the owners for use of the property for the duration it was made unavailable to the owners for their own purposes.

    1. Yep. Without a government who intervened like this you would have to assume that the set of property owners being protected would have to pay the property owners being flooded on their behalf.

  3. I'm gonna go out on a limb here and say that the government ends up ruling that the government is blameless.

  4. My guess is this will not be considered a taking because the Mississippi River flooding over the levees is probably considered a "emergency", which I believe is an exception to the takings rule. From what I understand, in an emergency, the government can "take" private property for the public good, like controlling a flooding river, or a forest fire, etc...

    If not an emergency, then it should be a taking.

    1. But some people's properties were deliberately flooded to prevent the flooding of otger properties that woyld have occurred in the do-nothing situation. That specific action and the diversion of damage seem to give the plaintiffs a case. If the government can cause an emergency for some in order to allay an emergency for others, the "emergency" exception (if it exists) is strained.

    2. Why the hell would an emergency be an exception? The question isn't whether they can do it, but whether they ought to make people whole after the fact.

  5. So, if the government kicks me off my property and occupies it, that's all good as long as they promise to leave someday?

    Isn't that what they're arguing here?

    1. Just get the fuck out. We'll let you know when you can come back.

      s/ Your Betters

  6. There should be no flood control projects constructed by the government in the first place. Stop subsidizing people to utilize flood prone land you fucking idiots.

    1. It's almost as though there's cause and effect happening in these situations. Like incentives can promote certain behavior that otherwise might not occur.


  7. I think a lot of the issue here is the attitude that if you live in an area that would have otherwise been flooded without government levies, you have no rights if the government elects to remove the levy protection.

    That's pretty shitty, but possibly valid point of view.

    The thing that sucks is the government is electing, without property owner consent, to take from one and give to another. Hmm...sounds like taxes and welfare.

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