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Posted on 12/04/2012 5:25:20 PM PST by SeekAndFind
We've got to celebrate the freedom-endorsing little victories won by the Supreme Court while we've still kinda-sorta got it (one shudders to think of what what the highest court in the land may look like after four more years of President Obama), and the justices logged one in favor of private-property rights with their unanimous decision on Arkansas Game and Fish Commission v. United States on Tuesday.
Per the Takings Clause of the Fifth Amendment ("nor shall private property be taken for public use, without just compensation"), the question was whether a series of floods coordinated by the U.S. Army Corps of Engineers qualified as an actual compensation-worthy taking, since the effects were temporary in nature (although, according to the Court’s opinion, the authorized flooding disrupted the peak growing season for timber and damaged or destroyed more than 18 million board feet of timber over seven years!). As one unit, SCOTUS affirmed that the federal government’s actions did indeed amount to a taking:
What the government taketh, the government must pay for.
That was the 8-0 ruling of the Supreme Court on Tuesday in a case that involved water, water everywhere for Arkansas wildlife officials for several months a year from 1993 to 2000 — water released at a federal dam that flooded state forest land and made it temporarily unusable. …
Justice Ruth Bader Ginsburg, writing for the full court except for Justice Elena Kagan who did not take part in the case, said the government’s actions did amount to a taking.
More from the Court’s opinion, delivered by Justice Ruth Bader Ginsburg:
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. … There is thus no solid grounding in precedent for setting flooding apart from all other government intrusions on property. And the Government has presented no other persuasive reason to do so. Its primary argument is of the in for a penny, in for a pound genre… The slippery slope argument, we note, is hardly novel or unique to flooding cases. 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.
Sorry, federal government — your seemingly tireless efforts to restrict private-property rights got the smackdown, at least for today.
I can’t remember, but ... isn’t this the second or third case Kagan has not taken part in ?
Color me surprised that any 0bama appointee would admit private property exists.
OMG RBG sounds almost Constitutional!
Government suing government. I guess we all win, or lose.
FUFG!
I suspect that the liberal justices may have joined in because the Federal government flooded a state forest. That makes it an environmental no-no.
As long as they are buggering each other, we, the people, get a little breathing room.
/johnny
I don’t see how the government can mandate we buy stuff but can’t take stuff. How is the first one not a taking?
Try mining the coal under your farm if the land is designated “prime farm land.” Now, that is taking.
I hope this ruling puts a damper on the efforts of environmentalists to return rivers to a “more natural flow”, periodically flooding areas to mimic the spring flood patterns that are now under human control. Deliberately flooding land and damaging it is going to cost you. This should slow down the rewilding of our rivers.
There have been many in which she was disqualified because she worked on the case as as a Government lawyer.
That it precisely why the takings clause is in the Constitution, to prevent that sort of abuse!
Poor California, they might see a rash of claims for past unconstitutional crimes.
As I recall, just in the last few days, a family was cheated out of the use of their oyster farm (Marin County, California) using this ploy (or the lame environmental or "global warming excuse," after being in business for several generations.
Time to talk to the Pacific Legal Foundation.
Ruth Bader Ginsburg?
Or some obscure texting geek acronym?
Or perhaps a weapon preferred by a horribly congested terrorist: The Rogged Brabelled Genade.
Micromanaging nature is fraught with contradictions, but the sanctimonious a*****e petty bureaucrats all practice industrial strength cognitive dissonance.
Damming rivers and NOT flooding national forests is also a no-no, depending on time and place.
No one ever claimed these ignorant, brain-dead losers are consistent.
A very shortsighted attitude.
We, the people, pay exorbitant amounts to fund both sides of suits that go on for a decade or more, in some instances.
Job security. Screw We the People!
I don't even buy green bananas. I might not last long enough to enjoy them.
I maintain that paying a handful of lawyers to bicker is much cheaper than the damage governments can do to Americans by killing production, limiting freedom, and all those other things that governments do when they aren't fighting each other.
/johnny
She must have had an important appointment at the nail salon. She certainly wouldn't recuse herself for anything approaching integrity.
I contend that eliminating our freedoms a tiny bit at a time, setting and building on precedent, is what makes all those horrible things you listed possible. The elected leaders come and go, but the bureaucracy lives forever.
e.g., take James Hansen at NASA...
So what, they still took it.
I got this in an email == and it’s close enough to the subject to post it.
The Food Stamp Program, administered by the U.S. Department of Agriculture, is proud to be distributing the greatest amount of free meals and food stamps ever, to 46 million people.
Meanwhile, the National Park Service, administered by the U.S. Department of the Interior, asks us “Please Do Not Feed the Animals.” Their stated reason for the policy is because the animals will grow dependent on handouts and will not learn to take care of themselves.
This ends today’s lesson.
Launch and nuke it from orbit, or apply the Chauchesku solution.
The Soviet burro-craps didn't keep their jobs in the new Republics, unless they changed their tunes. And they had somewhat upset lots of people.
Question: Why does it matter what time the car arrives 10 years from now?
Answer: Because the plumber is coming in the morning.
/johnny
Absolutely they are consistent in whatever is good for them.
How exactly is "state versus fed" in this case an example of Scotus siding with private property?
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Please.
Silly Roberts—Lesbos don’t get their nails done! :)
Silly Roberts—Lesbos don’t get their nails done! :)
... isn’t this the second or third case Kagan has not taken part in ?
It may not necessarily be because she recused herself. IINM, if a Justice is not present for the oral argument in a given case (for any reason), s/he may not take part (vote) in the decision on that case.
the State of California or rathers its army of petty tyrants, for decades now has fraudulently caused the zoning for land they covet to be changed to reduce its value before “purchasing” it (for the public good, of course””””
Such actions are called a ‘regulatory taking’, and Nevada County, California, tried such in the early 2000’s. They wanted to ‘inventory’ every square inch of everyone’s private property to look for ‘endangered species’ so they could tell you how YOU could use YOUR land and to what extent. They could have prevented me from using any of the pastures for my horses- both in part or in full.
I and others fought it all day until I made the statement ‘This is a regulatory taking’, we were getting no traction at the county supervisors meetings.
When I made that statement, all 5 of the supervisors turned pasty white. I explained in simple terms what ‘regulatory taking’ was to the audience on the open mic, which forced my comments to be part of the official record.
Then I told the angry supervisors that IF they were so darned bent on changing the traditional long term uses of my property—they could just write me a check for $350,000 within the next hour and I would be off the property—furniture-horses-trailers-vehicles-hay-bag and baggage within 10 days.
They were still pasty white, but they stayed silent.
I then told them that if they were not going to purchase my property for the above named price, they could stay the hell off my property for any and all reasons. Especially since they were planning ‘inventories’ of birds-bushes-bugs-everything on my 5 acres in a stealth manner—no notice. ANYONE could be on my prop0erty without my permission and I didn’t want that.
I knew that I had horses which would come running up to anyone looking for carrots and that such stampede would cause some elderly greenie to have a heart attack in my pasture. When I asked who would be responsible for such consequences, I was told I would have to pay for such a problem. That really got my dandruff up and the audience wasn’t happy, either.
They wanted to sneak onto my property without notice & then hold me responsible for any damage that happened to them. I wasn’t having it. They could own the property first, then they could inventory to their heart’s content.
We got ‘Nevada Heritage 2020’ rolled back, but it ended up in part of the Sierra Council 7 county regulations.
I could have happily shot all 5 of those supervisors, since they were also declaring THEIR property as EXEMPT from this inventory.
There have been many in which she was disqualified because she worked on the case as as a Government lawyer.
And yet, she didn't recuse herself for the landmark Obamacare case, when she directly worked on that case as Solicitor General.
I must be watching too much pr0n. </sarcasm>
I think I noted that in that decision, they still took the property.
Thanks for the ping, Tex. This is interesting...
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