The New York Times has chimed in on the pending Arkansas Game & Fish Commission case, and has come down squarely — surprise, surprise! — on the side of the government, arguing that flooding of property over a six-year period is not its taking and should not be compensable as such.  See Editorial, When Flooding Is Not a Taking, N.Y. Times, Oct. 6, 2012, at p. A 16 – click here

We have dealt with that topic in several recent posts, so there is no need to rehearse our arguments again. So we note the consistency with which the Times has come down editorially on the side of the government in taking cases, including even the Kelo case which some 90% of Americans found to be wrongly decided and outrageous in its impact on the lower middle class for the avowed benefit of a large corporation (the Pfizer pharmaceutical company) and its well-paid upper tier employees.

Here, the Times sings the praises of dams whose purpose is the “supplying  water and providing recreation and hydropower in addition to controlling floods,”* but it never gets around to explaining why in this case SCOTUS should ignore its own well-established principle that the purpose of the Just Compensation clause of the Fifth Amendment is to distribute the cost of public works on the population that benefits from them, and to impose only a fairly distributed pro rata economic burden on those impacted by the public works in question. See Armstrong v. United States. As Justice Holmes  put in Pennsylvania Coal Company v. Mahon, the public, the same as all others, is entitled only to that for which it pays, and though the people may want something very much, that does not excuse them from their constitutional obligation of paying for the change. In this case, the dam in question provides large, tangible benefits to farmers and landowners whose property it protects from floods, and it is difficult to see why the harm inflicted by it should be dumped onto landowners whose property fortuitously happens to be in close proximity to it. This is particularly true when one reflects on the fact noted by the Times, that the dam in question saved the public $22.3 billion a year from flood damage. So why shoudn’t the benefitted “public” be required to reimburse the comparatively paltry $5.8 million in losses that were inflicted on the landowners to gain that $22.3 billion annual benefit.

Nor does the Times editorial in question utter a peep concerning the fact — and it is an incontestable fact — that (a) flooding of private land is deemed a taking because it displaces the land’s rightful owners from use of their land, the same as any other physical taking, and (b) a compensable takings can be temporary as well as permanent or indefinite. In fact some of the best known compensated eminent domain takings took place during World War II “for the duration,” and thus were axiomatically temporary. So if a flooding is a taking, and a temporary taking is compensable, why is it that when the government floods private land for a temporary period of time (instead of occupying it with, say, a military training camp for the same period of time),  the taking miraculously ceases to be compensable?

Bottom line: What the Times plumps for is not a principled rule of law, but rather an economic and moral anomaly. SCOTUS noted in the Cors case that in the end, eminent domain is an exercise in “political ethics.” The Times does not understand that principle, and confuses ethics with kleptocracy.

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* We will have to revisit this sentiment next time the Times reports or editorializs favorably on the environmentalists’ demads that existing dams be torn down for the benefit of fish and kayakers.

The U.S. Supreme Court has just granted certiorari in an exaction/taking case, a la Nollan and Dolan.

The questions presented are:

1. Whether the government can be held liable for a taking when it refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a permit condition that, if applied, would violate the essential nexus and rough proportionality tests set out in Nollan v. California Coastal Commission , 483 U.S. 825 (1987), and Dolan v. City of  Tigard, 512 U.S. 374 (1994); and

2. Whether the nexus and proportionality tests set out in Nollan and Dolan apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use.

The case is Koontz v. St. John’s River Water Mgmnt. Dist.,   No. 11-1447. The opinion below (by the Florida Supreme Court) may be found at 77 So.3d 1220 (Fla. 2011)

Time flies whether you’re having fun or not. Forty years have gone by since the Boston riots protesting student busing ordered by the local federal court. Today’s New York Times takes a retrospective approach and informs us that with the passage of time, the Boston busing caper proved to be a disaster. See Katharine Q. Selye, 4 Decades After Clashes, Boston Again Debates School Busing, N.Y. Times, Oct 5, 2012, at p. A1 — click here.

At the time, white kids constituted some 73% of the Boston school population. Today they number around 13%. What happened? “White flight,” that’s what. The idea behind busing was that the student population should be spread among Boston schools so that black kids would go to school with their white conterparts and not be confined to old, decrepit inner city schools. But the predictable happened. Faced with having to send their kids to bad inner city schools, white parents moved out to the suburbs.

So you might think that, faced with such  tangible evidence of the failure of busing to achieve its stated goals, the Boston folks would reconsider. Nope. The Boston busing is still going on and the shrinking pool of white students is being shuffled around the increasingly minority urban schools. The largest student population is Hispanic (42%), with 8% Asian. Blacks amount to 35%, whereas when busing began, they were slightly over 20%.

So if you ever wonder why for the past half-century urban populations have been leaving older cities and moving out to the suburbs, leaving behind urban blight, reflect on these facts. Of course, busing was not the only factor that motivated the city-to-suburbd exodus, but it was a major factor because the quality of local schools is the single most important factor in a family’s choice of where to live. So next  time you read the effusions of some ideology-driven idiot going on about the joys of living in a crowded city apartment under the flag of “new urbanism,” do reflect on how it happened that so many people left cities in the past half-century, leaving behind urban blight and ruined swaths of cities that had been abandoned by their respective populations. To make our point clear: No, it wasn’t just busing. But busing, along with wretched public schools, rising crime, urban riots that started in the 1960s, urban deindustrialization, better and cheaper housing in the suburbs, etc. was what drove urban populations outward. To say nothing of the social benefits of doing so, notably the better life-style that suburban living offered, as opposed to city living.

Today’s New York Times brings a dispatch about yesterday’s oral arguments in Arkansas Game & Fish Commission v. United States. That’s the one where Uncle Sam released water from a dam intermittently over a period of several years and destroyed millions of dollars’ worth of standing state-owned timber in the process. The U.S. Court of Federal Claims found this to be a taking and awarded some $5 million, but the Federal Circuit reversed on the grounds that the taking was temporary.  SCOTUS granted cert.

At oral argument, neither side’s lawyers covered themselves with glory. According to the N.Y. Times (Adam Liptak, Justices Press Lawyers For Broad Solutions, N.Y. Times, Oct. 4, 2012 at p. A22) the lawyer for the Arkansas Commission babbled about there being no bright line, and that “it’s going to depend on the facts.”  And here we thought that the the outcome of all cases depends on the facts, and that the function of appellate courts is to decide what rule of law applie to those facts as found in trial. Besides, the overriding fact of this case was that this was a physical taking — the feds inundated the subject property, thus physically displacing its owner from the subject land for the duration of the inundation, and causing physical destruction of millions of dollars’ worth of standing timber. Sounds like a taking to us. How much clearer than that could a “line” get? We thought that SCOTUS explained why flooding is a taking in the Pumpelly case, stressing that it deprived the owner of his right to use his land the same as in a formal fee simple taking. Or, if you prefer something more recent, in Justice Brennan’s words:

 “From the property owner’s point of view, it may matter little whether his land is condemned and flooded, or whether it is restricted by regulation to use in its natural state, if the effect in both cases is to deprive him of all beneficial use.” San Diego Gas & Electr. Co. v. San Diego, 450 U.S. 621, 652 (1981), citations omitted, Brennan, J., dissenting.

So it boils down to an explanation of why a temporary inverse taking should not be compensable, when a temporary direct taking is.

We have a sneaky hunch that being asked from the bench to formulate a “bright line” was a disaster for the state. Although the state found itself in this case in the unusual role of a plaintiff/inverse condemnee, state entities are usually defendants in inverse condemnation cases, and the last thing they want is to have  to face a bright-line rule that would enable future landowner-plaintiffs to recover compensation once that bright line is crossed. Those folks much prefer multi-factor “balancing tests” that enable the (usually government-minded) trial judges to balance away and eventually conclude that — surprise, surprise — the state wins. So in the Arkansas case, the state’s lawyer babbled away about how “it’s going to depend on the facts” and plumped for a “balancing test.”

But having read the headline to this post, you must be wondering what all this has to do with Wernher von Braun. So here goes. It seems that when the federal government’s lawyer was arguing, he presented a position that was an artful blend of  evasivness and chutzpa. According to him there should be no liability for “temporary” inundation ever. By that “reasoning” Noah’s flood was only “temporary” and never mind if the Lord used it to destroy the world. Eventually it receded.

Additionally, the feds argued that if the floodwater comes from the reservoir directly there is no liability for the resulting taking, and when the inundation comes from below the dam, that is also not a compensable taking. That aroused Justice Kennedy’s sense of fairness and precipitated the observation that this reminded the good Justice of “the old moral of [sic] refuge that the rocket designers take. You know,” continued Justice Kennedy, “I make the rockets go up. Where they come down is not my concern.”

While we appreciate Justice Kennedy’s sense of justice, and his touch of humor didn’t hurt either, he managed to mangle an amusing bit of  history. The correct statement came to us from Tom Lehrer, a witty Harvard math professor who provided us with some entertaining musical comedy by composing several songs satirizing various social topics and persons, one of them being Wernher von Braun, one of the Germans responsible for the development of V-2 rockets that the Nazis used to attack London in World War II. Since in his misspent youth your faithful servant was a rocket engineer (who at one time worked with Wernher’s brother, Magnus von Braun — which is another story) he rises to the occasion to make two points. First, the line about not caring where “ze rockets come down” was satire not a “moral refuge.” They cared very much about accuracy and were amazingly successful at achieving it. If you don’t think so, consider the difficulty of firing an ICBM over a distance of 5000 miles and making sure it lands in the proverbial “pickle barrel.” Second, the Wernher von Braun line [per Tom Lehrer’s satirical song] that Justice Kennedy tried to repeat, went: “‘Once the rockets are up, who cares where zey come down? That’s not my department,’ says Wernher von Braun.”

We hope that somebody on the court will have the good sense to explain (or try to) why precisely the same government act that deprives a land owner of all  use of his land indefinitely is a compensable taking, but one that lasts for “only” five years isn’t. Wouldn’t the difference in duration go to the quantum of damages rather than to liability? And would a replication of Noah’s flood that destroyed the world be noncompensable? After all, it was  “temporary.” And what about the destruction of all that timber? And why can Uncle Sam take a five-year leasehold by filing an action in eminent domain which requires payment of just compensation, but can get off scot-free when he ignores his duty and just seizes the subject land for the same duration?

 This post was edited on October 4, 2012, at 11:02 PM

Once upon a time, not too long ago, the word “bullshit” was deemed to be unprintable, so euphemistic synonyms like humbug, balderdash, claptrap, hokum, drivel, and buncombe were used instead. Then, a few years ago, along came Princeton Professor Emeritus, Harry G. Frankfurt, who published a small book entitled On Bullshit (Princeton Univ. Press 2005) and set us straight by defining and explaining the meaning and proper usage of “bullshit.” As we recall, Professor Frankfurt’s little book even made it onto the bestseller list for a short while. That struck us as fortuitous because at that time, starting around 1980, bullshit became a staple of discussion of regulatory takings.

Credentialled professors took to law journals to assert that there is no such thing as a non-physical taking, Justice Holmes and the Supreme Court to the contrary notwithstanding; that even if there were such a thing, the remedy would not be the “just compensation” specified in the constitution, but only a judicial declaration that the confiscatory regulation was invalid; that Justice Holmes didn’t mean it when he formulated the regulatory taking doctrine in Pennsylvania Coal Co. v. Mahon (when regulation goes too far it will be judicially recognized as a de facto taking). No less a personage than Charles Breitel, Chief Judge of New York, bought into this nonsense, notwithstanding that it required a disregard of what Holmes actually said, and imputed to him an entirely different idea, namely, that when Holmes said “taking” he meant “deprivation of property without due process of law.” To his credit, Justice Brennan promptly shot Breitel down in his opinion in San Diego Gas & Electric Co. v. City of San Diego and characterized Breitel’s theory as an attempt to “tamper” with the language and holding of Justice Holmes’ Pennsylvania Coal opinion.

Though Breitel’s idea avowely required the substitution of mindreading for a plain reading of Holmes’ Pennsylvania Coal opinion,  it spread like weed. It was accepted as gospel by the California Supreme Court in Agins v. City of Tiburon, and affirmed on other grounds by the U.S. Supreme Court in 1980. But that state of affairs didn’t last — in 1987, the U. S. Supreme Court came to its senses, and in First English Evangelical Lutheran Church etc. v. County of Los Angeles invoked Justice Brandeis’ unanimous opinion in Hurley v. Kincaid , reviewed the Agins ruling on the merits, and held that the California Supreme Court was wrong on the issue of remedies for regulatory takings, and that  Agins had been wrongly decided.

But that left a question: Why did Breitel undertake this intellectual misadventure? What difference would using the two doctrines make? After all, isn’t deprivation of property without due process unconstitutional the same as its uncompensated taking? Yes it is. But Breitel reasoned that takings trigger relief under that pesky “Just Compensation” Clause, whereas the Due Process Clause is silent on remedies. So Breitel’s sneaky idea was that if he could characterize a taking of property as a “deprivation,” no compensation would have to be paid, and an aggrieved property owner’s sole “remedy” would be limited to a judicial declaration that the government shouldn’t have done what it it did — a remedy that was ineffective because by the time an aggrieved property owner could  get the courts to issue such a statement, he would be out a fortune in the property’s forgone utility, taxes and other expenses, lost opportunities, attorneys’ fees etc., etc., and at times would lose the property by foreclosure.

In short, Breitel’s theory was an example of Franfurt’s bullshit in its purest form — not an outright factual falsification of legal history, but not an true depiction of it either. It was a statement that exhibited “a lack of connection to a concern with truth — [an] indifference to how things really are — that [he] regard[ed] as the essence of bullshit.” (Franfurt, supra, at pp. 33-34).

Alas, history tends to repeat itself, so here we go again. This time U. S. Supreme Court  is about to hear oral arguments in Arkansas Game & Fish Commission v. United States in which the feds released dammed up waters and flooded state-owned forest lands on and off for some five years. Though eventually the feds drained the floodwaters, the flooding had destroyed valuable state timberlands, for which the U.S. Court of Federal Claims awarded over $5 million. A taking? Seems clear to us.  Inundation of land has been deemed a taking since the 19th century Pumpelly v. Green Bay Canal Co. case, and destruction of property for a pulic use (except to stop a conflagration or by troops in wartime) is deemed to be a taking, as the court pointed out in the General Motors case. The case of Cooper v. United States, 827 F.2d 762 (Fed.Cir. 1987) seems directly on point in favor of the Commission.

Moreover, temporary takings are a staple of federal eminent domain law, as in cases where the government takes leaseholds, temporary construction easements, or when it overstays its right to possession under leases that come to an end. The point is that whatever the facts giving rise to a “temporary” taking, cases in which the government physically displaces the owner and prevents him from using his land are indeed takings. And even if you twist the English language and call a five-year taking “temporary,” that seems plenty “substantial” an interference with use of the flooded land to qualify as a taking.

So what’s the problem? These are all elementary applications of eminent domain law. During World War II, takings “for the duration” ran into hundreds, if not thousands, and damages set by the courts included rents, and the cost of the taken property’s restoration. Many of them were for less than five years. Yet nobody that I am aware of ever suggested that those cases should not have been compensated because they were “temporary.”

So we await the decision in the Arkansas case with bated breath hoping to learn whether ad hoc Frankfurterian bullshit will triumph over legal doctrine. Stay tuned.

Follow up: For a thorough discussion of the Arkansas Game & Fish case by Lyle Dennison, entitled Argument Preview: Duty to Pay for Flooding, go to www.scotusblog.com and check out the post of October 2, 2012.

Second Follow-up. Go to scotusblog.com http://www.scotusblog.com/2012/10/argument-recap-trust-us-as-a-legal-standard/#more-153189 for a detailed descripion of today’s oral argument. What we find amazing is that no one, on either side of the bench, took note of the direct-inverse dichotomy whereby the government has to pay compensation when it files an eminent domain action to effect a temporary taking, but can just ignore the constitution, and inundate (or otherwise temporarily take) private land without observing the nicety of filing such an action or paying compensation, as it is required to do under the Uniform Relocation Assistance Act.

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Full disclosure: Your faithful servant briefed and argued the Agins case before the U.S. Supreme Court, and filed an amicus curiae brief supporting the church in the First English case.