Back in October I wrote about a conflict here in North Dakota wherein the federal government was roadblocking the building of roads in federal wildlife areas that, in turn, is preventing the owners of mineral rights under those lands from developing their property. Several counties, and the state of North Dakota, are challenging the feds on the issue.
I wondered at the time if a case before the Supreme Court having to do with the federal government flooding land owned by the State of Arknasas, and thus rending it unusable, would have bearing on North Dakota’s dispute. Well yesterday SCOTUS handed down a unanimous ruling on the Arkansas case, holding that if the federal government renders a piece of land unusable, even temporarily, that constitutes a taking and necessitates just compensation.
This is from the opinion, written by Justice Ginsberg and representing every member of the court (except Kagan who recused herself):
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.
If the federal government blocking access to land through flooding is a taking, what about blocking the use of mineral rights through regulation? Be it through a prohibition on building roads on federal land to facilitate mineral rights development, or through regulation that might ban something like fracking, could one argue that the federal government preventing mineral rights development through regulation is a taking, giving the mineral rights/property owner a right to compensation?
It’s an interesting question. Proponents of federal regulation would probably argue that they have a compelling reason. “Protecting the environment,” or whatever. But it’s worth injecting into the discussion about oil production, and government regulation thereof, the idea that those who own mineral resources have a right to the use of those resources.