The Takings Clause of the Fifth Amendment requires the government to pay just compensation when it takes property for a public use. Arguing before the U.S. Supreme Court yesterday morning in the case of Arkansas Game & Fish Commission v. United States, Deputy Solicitor General Edwin Kneedler advanced a theory of the Takings Clause that was so narrow in scope it appeared to visibly trouble several of the justices. "I must be slow today," Justice Sonia Sotomayor told Kneedler at one point in exasperation, because "I'm having a significant problem with your articulation of your test."
At issue in the case is whether a series of recurring floods induced by the U.S. Army Corps of Engineers that caused at least $5 million in damage to the property of the Arkansas Game & Fish Commission amounts to a taking under the Fifth Amendment. Not only was it not a taking, Kneedler told the Court, but in fact no landowner unfortunate enough to live or maintain property downstream from a government dam could ever bring a takings claim when the dam floods. "Riparian ownership carries with it certain risks and uncertainties," he told the Court. In other words: Floods happen and the government isn't responsible. "It is in the nature of living along a river," Kneedler said.
This argument seemed to be too much for several of the justices to swallow. "Your position seems to be that if it's downstream, somehow it's not the Government," observed Justice Anthony Kennedy. But that's like "the old moral of refuge that the rocket designers take," Kennedy continued. "You know, I make the rockets go up; where they come down is not my concern."
But Kneedler refused to budge, arguing that the Army Corps of Engineers "requires a broad ambit of discretion" when making flood management decisions, including the leeway to release destructive floodwaters downstream without incurring liability.
"The issue is who is going to pay" when the government builds a dam and releases flood waters as part of its management plan, declared Justice Antonin Scalia. "Should it be everybody, so that the government pays, and all of us pay through taxes, or should it be this–this particular sorry landowner who happens to lose all this trees?"
The sharpest criticism of the day came from Chief Justice John Roberts, however, who repeatedly interrogated the deputy solicitor general over his cramped reading of the Takings Clause. "If the government comes in and tells a landowner downstream that every March and April we are going to flood your property so that you can't use it," Roberts asked, "that's not a taking?" Kneedler maintained that it was not.
While it's unwise to read too much into an oral argument, it's nonetheless difficult to imagine the deputy solicitor general feeling especially positive about the icy reception his arguments received. Judging by what I observed in the courtroom yesterday, the federal government's case is on shaky ground.