We have wondered about the question posed by the above headline, without coming up with a clear (or for that matter, any) answer. On the one hand we believe that property rights are an important subject — “The Guardian of All Other Rights,” as Professor James Ely put it in the title to his book. But on the other hand, apart from a flurry of inconclusive, mostly procedural cases dealing largely with ripeness in takings cases, that ended with a whimper in the 1980s as far as property rights are concerned, when the court largely confirmed what we already knew. Thereafter, SCOTUS hasn’t had much to say on the subject, except for the wretched Kelo case that pissed off the country mightily (among others, it was repudiated by a state constitutional amendment in Virginia in this week’s election), and of which the less said, the better, and that silly Florida Restore the Beach case that was supposed to deal with “judicial takings,” except it turned out that any arguable taking in that controversy was legislative, not judicial.
But now there are two inverse taking cases pending on the merits before the Supreme Court. In the first one (Arkansas Fish & Wildlife Commission v. United States, argued recently) the question is whether the feds’ inundation of Arkansas state-owned forest land for five years, and the resulting destruction of millions of dollars’ worth of standing timber, is a compensable taking. The other one (Koontz) involves exactions; whether it was proper for a Florida Water District to demand a cash “contribution” by a land owner as a condition of granting of a development permit, in light of the Nollan and Dolan cases (which answered that question with a “no”) when exactions of land rather than cash are involved. Stay tuned for that one. To get an good overview of these cases, check out Lawrence Hurley, Supreme Court: Property Rights Take Center Stage in Disputes Over Wetlands, Flooding, E & E Publications, LLC, Nov. 6, 2012 — click here. It’s all there, including quotes from the usual suspects — folks who have been battling in these trenches for decades.
Our thanks to Robert Thomas, our fellow blogger at www.inversecondemnation.com for tipping us off to this article.