Earlier this week, I explained that, behind the legal doctrines, is a simple philosophical question: should property rights depend on the importance of the public interest? Today, the federal government said that's exactly the case (represented below by Mr. Kneedler). In fact, Congress had been good enough to help these landowners to begin with, so that the landowners should have known that the government could later decide to flood their lands:
MR. KNEEDLER: I don't believe that that's correct. I mean, that -- that would turn on the happenstance of what a particular landowner had -- had on his property downstream. And I think the government, in operating the general project, cannot be held to do an investigation of every property owner. Again, it's releasing water generally. And if we -- maybe if I could use the levy example here. This -- the release changes that were made here were made to protect farmers so that they could - so that they could plant more crops and not -- and be protected during their harvesting. If you shift back to what the Corps -- to the Corps' regular operating scheme, it affects the farmers. There might be a flood -
MR. KNEEDLER: It is in the nature -
JUSTICE SCALIA: That doesn't seem to me particularly fair.
MR. KNEEDLER: It is in the nature of living along a river. Riparian ownership carries with it certain risks and uncertainties, from weather, from intervening causes. The government is -- there are a thousand square miles, more square miles of drainage area --
JUSTICE SCALIA: I don't think -- one of those risks has to be the Government's going to make you pay for protecting somebody else. Is that one of the risks?
MR. KNEEDLER: Well, when -- picking up on what I said about Congress, Congress would not have
gotten into the flood control business without this protection of liability. People -
JUSTICE SCALIA: I doubt that.
JUSTICE SCALIA: I mean, the issue is who is going to pay for the wonderful benefit to these farmers. 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 his trees?Even Justice Breyer agreed that this position was absurd, since the government undertakes public works in many fields, and in all of them it must compensate a property owners if something goes awry and property is taken:
JUSTICE BREYER: But building a Government project, let's say an electricity plant or high tension wires, you could require the taking of some land to build it. Now, you've got that and you begin to run it. You could run it in such a way that it takes some of the property. I mean, the electricity could, for example, because of some odd thing run around over somebody's land and kill all the chickens. That wasn't expected but it happens, and it happened because of the way the Government runs the plant. Now, I guess there would be a taking in such circumstance if in fact, because of the way it's run, it makes that land which no one thought would happen, as a consequence of the project uninhabitable; wouldn't there be?
MR. KNEEDLER: Well, again, it depends. If the Government -- if the Government is occupying the land when it happens, yes. But there's -- as you've I think pointed out, there's a critical difference between a tort and a taking. And there -- there can be collateral consequences of what the Government does that -- that cause injury.
JUSTICE BREYER: The collateral consequence is to make some piece of land 4 miles away quite unexpectedly but totally uninhabitable. Now, what's supposed to happen there? That's not just a trespass because it's permanent. And even if it's once every 2 years, it's permanently once every 2 years.Hopefully the rest of the Court will agree that it is absurd to elevate the public interest so much that a private landowner must single-handedly bear a burden that results from a benefit given to the public at large. Otherwise, expect to see less private investment in areas near government public works.
