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12/05/2012

U.S. Supreme Court: A Taking Is a Taking (and Private Means Public)
Michael Ramsey

Yesterday the Supreme Court held unanimously (per Justice Ginsburg) in Arkansas Game and Fish Commission v. United States that the federal government flooding land (through releases from a dam) is (or rather may be) a taking requiring compensation under the Fifth Amendment, even if the flooding is temporary:  "We rule today, simply and only, that government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection."  (For analysis, see Lyle Denniston at SCOTUSblog and Ilya Somin at Volokh Conspiracy.)

The Court's basic point seems right on originalist grounds: something can be "taken" in ordinary language even if it's going to be given back someday, and I'd be surprised if eighteenth-century langauge showed anything different.  The opposite result, unless arbitrarily limited to flooding (as the government argued), would lead to consequences that are surely inconsistent with the eighteenth-century understanding of takings law.

Still, as Professor Somin pointed out earlier, the case is troubling (I would say, clearly wrong) on its particular facts, because the landowner is a state entity.  (The Fifth Amendment bars takings of "private property" without just compensation).  True, an 1893 case simply assumed that federal takings of state property required compensation without worrying about the text, so the parties here didn't argue the point.  But no one who takes text seriously could say that the Fifth Amendment contains this requirement.

That doesn't necessarily mean that the federal government can take state land without compensation; the federal government doesn't have this power expressly, so it would have to be "necessary and proper" to carry into execution some express power.  Maybe it isn't -- on federalism grounds, for example.  But removing the Fifth Amendment from the case (as should be done) would make it a lot more interesting and difficult.