Supreme Court: Federal Government Blocking Land Use Constitutes A Taking


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.

Rob Port is the editor of In 2011 he was a finalist for the Watch Dog of the Year from the Sam Adams Alliance and winner of the Americans For Prosperity Award for Online Excellence. In 2013 the Washington Post named SAB one of the nation's top state-based political blogs, and named Rob one of the state's best political reporters.

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  • Thresherman

    More importantly, the case involved the interuption of production and harvesting of trees, a natural resource, which was considered to be part of the material aspect of the “taking”. The courts rulling that denial of the use of a natural resource to be a “taking” would equally apply here. Now the Feds could argue that a road would construe a “taking” of its own by claiming that it would disrupt or destroy a portion of the area’s “natural beauty”. But if it could be shown that the road could be constructed in a manner that when its use was completed, the area could be restored and the fact that the land had been traveled across by humans for human’s purposes prior to the present, would deny a claim of lasting and permanent damage and thus further weaken the Feds already weak case..

  • Harold

    Before Obama is done with america, the govt will pretty much own everything you’ve ever worked for and earned from your sweat.

    • ellinas1

      Oh, BS.
      Nothing much will change.

  • WOOF

    “CAN constitute a taking of property,”
    “MAY be
    compensable “

    • Rob

      Still better than no chance of it being a taking at all.

      If the government blocks my use of my land, compensation is war rented.

  • borborygmi

    Doesn’t say they can’t do it just that they must compensate the owner.