Supreme Court

Federal Government Loses Big in Supreme Court Property Rights Case


The federal government suffered a major defeat today at the U.S. Supreme Court in the case of Arkansas Game & Fish Commission v. United States. In their unanimous decision, the justices rejected the government's sweeping claim that a series of recurring floods induced by the U.S. Army Corps of Engineers did not qualify as a taking of property under the Fifth Amendment because the flooding was only temporary in duration. As Justice Ruth Bader Ginsburg wrote for the Court:

Because government-induced flooding can constitute a taking of property, and because a taking need not be permanent to be compensable, our precedent indicates that government-induced flooding of limited duration may be compensable. No decision of this Court authorizes a blanket temporary-flooding exception to our Takings Clause jurisprudence, and we decline to create such an exception in this case.

The Court also rejected the government's assertion that the Army Corps of Engineers needed to be free from the constraints of the Takings Clause in order to effectively do its job:

Time and again in Takings Clause cases, the Court has heard the prophecy that recognizing a just compensation claim would unduly impede the government's ability to act in the public interest. We have rejected this argument when deployed to urge blanket exemptions from the Fifth Amendment's instruction.

As for the surprising claim made during oral argument by Deputy Solicitor General Edwin Kneedler, who told the justices that no property owner whose land lay below a government dam could ever bring suit under the Takings Clause in response to a government-induced flood, the Court observed that because this novel argument "was not aired in the courts below, and [was] barely hinted at in the brief the Government filed in this Court…we express no opinion on the proposed upstream/downstream distinction."

I'm a little surprised the Supreme Court didn't reject Kneedler's bogus upstream/downstream distinction outright, given that most of the justices seemed so dismayed by it during oral argument (Justice Anthony Kennedy likened Kneedler's position to the "old moral refuge" of German rocket scientists who said "I make the rockets go up; where they come down is not my concern"), but perhaps the justices opted for a unanimous ruling against the government rather than a divided opinion where the majority delivered an even more forceful denunciation.

Bottom line: The federal government went to court in the hopes of restricting property rights and came up short.

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  1. (Justice Anthony Kennedy likened Kneedler’s position to the “old moral refuge” of German rocket scientists who said “I make the rockets go up; where they come down is not my concern”)

    So Justice Kennedy Godwinned the oral arguments?

    1. Hitler seems to be the only evil the plebeian statists are aware of, so it is probably the reason the elitist statists are so desperate to dismiss the arguments.

    2. I won’t ever complain when a SCOTUS Justice compares the Federal Government to the Nazis.

  2. Wherner von Braun

    “In English oder Deutch I know how to count down,
    und I’m learning Chinese!” says Wherner von Braun

    1. Little known fact: his surname was shortened from “von Braunhemden”.

    2. Lehrer gets a nice dig at Stimulus too.

      Some have harsh words for this man of renown,
      But some think our attitude
      Should be one of gratitude,
      Like the widows and cripples in old London town
      Who owe their large pensions to Wernher von Braun.

    3. there’s a lot of stuff around here named after him.

  3. I do love it when the Nazgul go unanimous; given the certiorari process it mans that they really took the case to administer a Formal Beating.

  4. OT, The Pain from Spain falls mainly in Ukraine

    Just wow. $1.1 billion dollar deal was faked by a Spanish fraudster, leaving Ukraine still dependent on Gazprom. You can’t tell me Russia didn’t engineer this.

    1. I sure hope this doesn’t mean Dr. Groovus will be freezing in the dark this winter!!!

      1. Maybe he can huddle with some of the nurses to keep warm.

    2. Wow. That’s central planning at its finest.

  5. No decision of this Court authorizes a blanket temporary-flooding exception to our Takings Clause jurisprudence, and we decline to create such an exception in this case.

    I’m a little dismayed that they believe they have the right to create blanket exceptions to amendments when/if they feel like it.

    I’m glad they “chose” not to do so in this case, but damn, what’s the point of them if The Nine can simply declare exceptions if they find the argument to do so compelling?

    1. Rule of Man.

    2. “It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

      So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

      Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law [e.g., the statute or treaty].
      This doctrine would subvert the very foundation of all written constitutions.”

      1. The Constitution applies when convenient.

        1. That was determined shortly after the Constitution was written.

          1. Doesn’t take long for power to corrupt.

            1. Patrick Henry agrees:

              “I need not take much pains to show that the principles of this system are extremely pernicious, impolitic, and dangerous. Is this a monarchy, like England-a compact between prince and people, with checks on the former to secure the liberty of the latter? Is this a Confederacy, like Holland-an association of a number of independent states, each of which retains its individual sovereignty? It is not a democracy, wherein the people retain all their rights securely. Had these principles been adhered to, we should not have been brought to this alarming transition, from a Confederacy to a consolidated Government. We have no detail of these great consideration, which, in my opinion, ought to have abounded before we should recur to a government of this kind. Here is a revolution as radical as that which separated us from Great Britain. It is radical in this transition; our rights and privileges are endangered, and the sovereignty of the states will be relinquished: And cannot we plainly see that this is actually the case? The rights of conscience, trial by jury, liberty of the press, all your immunities and franchises, all pretensions to human rights and privileges, are rendered insecure, if not lost, by this change, so loudly talked of by some, and inconsiderately by others. Is this tame relinquishment of rights worthy of freemen?”

        2. yep, see Robert’s penaltax as another example.

    3. I think you’re making the Constitution more than it is. It’s full of exceptions and loopholes, which is what the justices are applying.

      In other words, the Constitution is shittely written.

      1. I know. Things like “Congress shall make no law” and “shall not be infringed” are sooooo ambiguous. Only a legal scholar could figure that out.

        1. “unreasonable search and seizure”, “due process”, “just compensation”, “speedy trial”,…

          These are all weasel words, and probably intentionally so. Do recall that the framers of the BoR had no reason to believe it was going to be enforced in any way. They were relying on the leaders’ honor and the threat of rebellion. So precise words probably didn’t really matter to them.

      2. Which is why the original Supreme Court, led by John Marshall, was able to get away with taking so much power.

        1. Marshall wasn’t on the first SCOTUS. Didn’t start till 1801. There were 8 courts prior.

          1. OK, you got me. I suck at history. I guess that should read “one of the early Supreme Courts…”

      3. This.

        The biggest problem is the gorram incorporation doctrine. The Bill of Rights was not written with state governments in mind, it was merely intended to keep the federal government under control should it escape the confines of its enumerated powers (which it has long since done).

        Exhibit A is the first amendment’s express application to “Congress”, not any state legislature.

        1. That may have originally been the case, but the 14th ammendment changed that.

          1. No it didn’t. The original text is what it is, and attempting to decipher it in the context of a government with general police powers is extremely difficult.

            If taken literally and paired with the incorporation doctrine, the first amendment forbids any government at any level from punishing death threats, for instance. The framers didn’t worry about that interpretation since states could still punish death threats regardless of what the first amendment said.

            1. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”.

              1. The legislative history of the 14th Amendment makes it pretty clear that the drafters of the law intended it to apply basic federal protections (e.g. the Bill of Rights) to the states. They were upset about an 1833 case, Barron v. Baltimore, in which SCOTUS held that the Bill of Rights didn’t extend to the states and municipalities.

                1. Moreover, your counterexample doesn’t make any sense. If taken literally, the 1st Amendment seems to imply that the FEDERAL government can’t place limits on speech. Yet it certainly has placed limits on political speech through campaign finance laws. The SCOTUS has upheld some of those laws, most notoriously Buckley v. Valeo.

                  1. Or to other federal speech laws. For instance, Schenck v. United States.

                    1. How about federal obscenity restrictions? Upheld in United States v. Williams.

                    2. I’m sure you could come up with a whole host of other cases where the SCOTUS has held that the 1st Amendment doesn’t protect all speech. That some FEDERAL restrictions on speech are permissible. This being the case, incorporation would imply that some state restrictions on speech are also permissible.

                      Incorporation jurisprudence is accepted law and it doesn’t fall into any logical contradictions. At least not when modern Constitutional interpretation is in play. And it’s a good thing it is so accepted. States are just as bad at violating liberties as the federal government.

  6. Am I a poor loser for being pissed they let Ginsburg write the majority? Now I’ll have to hear how progs are good on property rights b/c of that one time when Ruth Bader wrote that majority opinion.

    1. Unanimous opinions are great because they show that the losing party’s argument was a complete failure, and leave no room for nuance. I would have liked to see Nino spitting venom, but that would have produced a split majority/concurrence that looks weaker.

      Also, if progs says that Ginsburg is great on property rights, remind them that Kelo was old-fashioned Urban Renewal (aka “Nigger-Removal”) dressed up in fancy “government interest” language.

      1. She was also with the majority in Gonzales vs. Raich, again joining the majority opinion of that lion of leftist jurisprudence John Paul Stevens.

        1. And those leftists Kennedy and Scalia (concurring). Wait a minute…

  7. Good decision.

    “Temporary” flooding can clearly be a taking if it damages an existing structure. The government compensates homeowners for natural flooding, via the flood insurance program. So surely it should recognize that *deliberate* flooding also damages property.

    And if that is the case, it prevents construction as well. You’re not going to build a house on a piece of land that you know will be flooded.
    But why limit that to only physical buildings? Thetre are many uses of land other than building houses on them, which can be harmed by flooding. You can’t plant crops. You can’t landscape. You can’t put up a fence. The flooding also wrecks havoc with fish stocks, and would wipe out a pier if you had one. You couldn’t evne put in a mountain bike path or a nature trail because the flooding would knock down trees and deposit silt in new ways.

    1. Also, you can’t use it during the flood.

    2. The decision is OK on it’s face, but the greater impact is not. Now everyone in the flood plain will be TAKING your tax money every time the Corp has to release flood water. So the only solutions? Build a dam / reservoir large enough to hold a 5,000 year flood or remove all the dams completely and let water flow naturally….. Without federal flood insurance provided to anyone or anything in its path.

      1. The fucking corps of dumbass-couldn’t-make-it-in-the-private-sector statist engineers should have never been permitted to be involved in any “flood control” whatsoever. Take out all those god damn locks and dams and let the river do its thing.

    3. A taking is deprivation of property rights. It does not require structures or any specific physical elements. The critical issue is simple to express (if difficult to establish): does the government action have a material effect on the fair market value of the property?

  8. I’d say it’s a taking regardless of damage, given that during the flooding, the land is unusable for whatever use it was put when it wasn’t flooded. Essentially, the government would be “renting” the land temporarily to dump their water on it.

    1. True, but my point is that the taing is actually larger than just renting the land for the period of the flooding, because the prospect of future flooding means you can’t build on it or do anything with it, because the flooding will destroy your crops/house/whatever. So you can’t even use the land even when it’s NOT flooded, unless the government is finished and promises never to flood it again.

      1. Unless maybe, the government promised to flood it only in between harvest and planting, to coincide with your planting schedule, but that would only apply to crops. You still couldn’t build a boathouse.

  9. But it was the State of Alabama suing. The takings clause applies to private property taken for public use – land owned by the State of Alabama isn’t private property is it? The obvious question to me: how came the State of Alabama to own this land? They didn’t happen to eminent domain this land away from private citizens did they? It would be pretty rich for one thief to complain that a bigger thief is stealing the stuff he stole from somebody else. But completely in keeping with governmental brass.

    1. It’s Arkansas, actually.

  10. This is just gonna give people hope. There is no hope. Abandon hope.

    1. Who said anything about hope?

      It is like watching a Patriots game. You know the bad guys are going to win in the end. You just enjoy seeing some of them suffer painful, crippling injuries along the way.

  11. “I’m a little surprised the Supreme Court didn’t reject Kneedler’s bogus upstream/downstream distinction outright”

    This should not be surprising since the Supreme Court should be reviewing previous court’s decisions, not addressing new claims or issues. It would be inappropriate for the Supreme Court to address this claim without proper discovery and establishment of facts – processes which the SCt is not involved.

    This ruling settled a legal issue, but not the dispute. It may be determined that the actual damage was not significant, or that the flooding might be naturally occurring (I am making stuff up here). As the decision states at the end:

    “The Government, however, challenged several of the trial court’s factfindings, including those relating to causation, foreseeability, substantiality, and the amount ofdamages. Because the Federal Circuit rested its decision entirely on the temporary duration of the flooding, it did not address those challenges. As earlier noted, see supra,at 13, preserved issues remain open for consideration on remand.”

  12. The fact that this even needs to go to the Supreme Court is enough to depress me, regardless of outcome.

  13. perhaps the justices opted for a unanimous ruling against the government rather than a divided opinion where the majority delivered an even more forceful denunciation.

    Isn’t that what concurring opinions are for?

  14. Seems like we almost needed to pull in the little-used Third Amendment. If the government can “temporarily” take your property by flooding it, then they can also, in time of peace, “temporarily” force you to put up a squad of NAVY Seals without your consent.

    1. Since when did Congress feel inclined to seek permission before the fact?

    1. I’m being attacked by filters:…..2ars4.html

      1. What a great tool…. for pursuing vendettas.

  15. So does this now mean that the Army is now responsible for any damage caused by flooding in an area that floods naturally, if they construct any devices to reduce flooding in those areas?

    1. Yes, privatize it.

    2. No. These were intentional floods.

      1. This wildlife place was most likely a natural floodplain before the Army built some dyke, levee, or berm. So in a way, the Army shoved a huge penis up its own ass, because either way something is going to get flooded now. Whereas before “flood control”, floods just happened and it was your own damn fault if the flood caused a problem for you.

      2. What this means is that “flood control” is creating entitlements for places not to get flooded. This is a very horrible case to test the takings clause.

      3. Intentional, yes. To prevent more costly flooding downriver. Namely New Orleans which sits below the Mississippi most of the time anyway. DR&S is right. Remove the freaking dams and let the river flow. Who / what “caused” the flood. Water! Maybe if Fargo ND, hadn’t built flood control levees the rain and snow would have soaked into the earth and Arkansas wouldn’t have to have been “intentionally” flooded. So how the hell can you assign blame and cause?

        1. If My neighbor is going to get flooded and he petitions the federal government to divert the flood to my place and the government complies, I’m pretty sure I’m going to want compensation from someone. It’s one thing to get flooded because that’s just how the water flows; it’s quite another to be the patsy who gets flooded so someone else doesn’t have to.

  16. Also, how does a nature reserve get damaged by nature?

  17. Upstream/Downstream? I would guess that most Americans live downstream of a dam. You would have to have a house pretty high up in the Rockies, the Sierra Nevadas, or whatever passes for mountains on the East Coast (Blue Mtns?), in order NOT to live downstream from a dam.
    And in the West, almost all of the “headwaters”, which are usually glaciers, are owned by the Federal Government anyway, so how are you not going to live downstream of a dam?

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