The New York Times Continues Its Jihad Against Private Property

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.