Property Rights

Seeking Just Compensation for Damages from Federal Flooding

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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.