The New York Times editorial page has weighed in on Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012), the takings case argued earlier this week in the U.S. Supreme Court.
And, no surprise, in When Flooding Is Not a Taking, the great beneficiary of eminent domain abuse comes out on the “no compensation” side when the government purposefully floods property because — get this — the floodwaters eventually recede:
The takings clause of the Constitution’s Fifth Amendment ensures that private property cannot be taken for public use without fair compensation. A classic example is the government’s exercise of eminent domain power to build a highway; if the road cuts through private land, the government owes the owners payment equal to fair market value. That principle applies when the government builds a dam, and water and silt overflow land, permanently destroying or limiting its value. But for 88 years, the position of the Supreme Court has been that “temporary invasion” of land by flooding is not a taking because water recedes.
Leave it to the editorial board of the Times to get it wrong again.
First, the Supreme Court case the opinion piece links to as supporting its claim that “temporary invasions” cannot lead to inverse condemnation liability is Sanguinetti v. United States, 264 U.S. 146 (1924). That case, as noted in the arguments and briefs, said no such thing. It’s one thing to take an aggressive reading of the case as the government does (that’s just good lawyering*), but another thing entirely to suggest, as the Times editorial does, that this case represents game-set-match.
Second, the fact that floodwaters recede doesn’t mean the physical invasion is any less of a taking; don’t most floodwaters, except those behind a dam, eventually recede? Indeed, not even floodwaters behind dams can be deemed truly “permanent.” As the proposal to “restore” Hetch Hetchy demonstrates, even long-standing and vitally needed dams may be removed thus allowing the floodwaters behind them to “recede.” As majority of the Court told us in Tahoe-Sierra, there’s no such thing as “permanent.”
Finally, the Times editorial is a restatement of the government’s argument, that flooding is going to happen downstream no matter what, and since the government is only deciding which landowner gets to take the hit, it really isn’t a taking; it’s just Alabama’s tough luck that it got chosen.It seems to us that when the federal government acts in furtherance of its commerce and navigation power, its deciding that landowner A loses and not landowner B, is not conceptually different that the government deciding which landowner has tohave a post office on her land, and is exactly the circumstance in which the Takings Clause says everyone should pay, and not just the impacted landowner.
Gideon Kanner adds his thoughts on the editorial in “The New York Times Continues It’s Jihad Against Private Property.”
——————————-
*Updated: as a respected colleague notes, for the government lawyer to overstate the holding of a case “is not ‘good lawyering,’ it is a violationof the ethical obligations of government lawyers, whose duty (as it says instone over SCOTUS) is to see that justice is done.” Well said, and we stand corrected.
For more about this ethical duty in eminent domain cases, see, e.g., City of Los Angeles v. Decker, 18 Cal. 3d 860 (1977), in which the California Supreme Court concluded:
The duty of a government attorney in an eminent domain action, which has been characterized as “a sober inquiry into values, designed to strike a just balance between the economic interests of the public and those of the landowner” (Sacramento etc. Drainage Dist. v. Reed (1963) 215 Cal. App. 2d 60, 69 [29 Cal.Rptr. 847]), is of high order. “The condemnor acts in a quasi-judicial capacity and should be encouraged to exercise his tremendous power fairly, equitably and with a deep understanding of the theory and practice of just compensation.” (Hogan, Trial Techniques in Eminent Domain (1970) pp. 133, 135.)
A great reminder that the obligation of government attorneys in all cases is not just to win, but to seek justice.