The Court roundly criticizes the government for attempting to carve out exceptions to the Takings Clause. It rejects the familiar argument that is made in nearly every takings case that the government won't be able to do its job if it is burdened with the mandate to pay just compensation:
I'll post more analysis later, but until then my archives on the case are here. My fellow blogger Robert Thomas has already posted some of his initial thoughts.
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: reversing the decision below, the Government worries, risks disruption of public works dedicated to flood control. “[E]very passing flood attributable to the government’s operation of a floodcontrol project, no matter how brief,” the Government hypothesizes, might qualify as a compensable taking. Brief for United States 29. To reject a categorical bar to temporary-flooding takings claims, however, is scarcely to credit all, or even many, such claims. It is of course incumbent on courts to weigh carefully the relevant factors and circumstances in each case, as instructed by our decisions. See infra, at 14.
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. Causby, 328 U. S., at 275 (Black, J., dissenting); Loretto, 458 U. S., at 455 (Blackmun, J., dissenting). We have rejected this argument when deployed to urge blanket exemptions from the Fifth Amendment’s instruction. While we recognize the importance of the public interests the Government advances in this case, we do not see them as categorically different from the interests at stake in myriad other Takings Clause cases. The sky did not fall after Causby, and today’s modest decision augurs no deluge of takings liability.This is a solid opinion for property owners that brings some much-needed clarity to the law. It's good to see a unanimous opinion protecting property rights. The Court also seems comfortable that its current takings precedents cover most situations, making it disinclined to adopt any new rules. We may see more of this philosophy in January when the Court hears Koontz v. St Johns River Water Management District, No. 11-1447 (cert. granted Oct. 5, 2012). This still leaves the petitioning property owner there in a good position because the biggest stretch the Court would need to make is to modestly expand its current caselaw. Dolan v. Tigard, 512 U.S. 374, 391 (2005); Nollan v. Cal. Coastal Com., 483 U.S. 825, 837 (1987).
I'll post more analysis later, but until then my archives on the case are here. My fellow blogger Robert Thomas has already posted some of his initial thoughts.
