In his latest column for Daily Journal, Manatt Appellate Senior Counsel Michael Berger discussed a recent case involving the destructive flooding of property along the Missouri River and how it highlights the federal government’s tendency to continually litigate such takings cases, rather than resolving them.
The case, Ideker Farms, LLC. v. United States, surrounds a lawsuit by hundreds of property owners and farmers near the Missouri River against the U.S. Army Corps of Engineers in relation to the destructive flooding of their properties, following the Corps’ change in policy to focus on returning the river to a more natural state rather than on economic development. After the owners demanded compensation for a permanent flowage easement over their property, the government argued that since a pattern of flooding could not be established, they could not be held liable. Yet this argument misaligned with the longstanding Supreme Court holding that if any government construction or public works flood private property and significantly ruins its value, a taking has occurred.
In a previous takings case, Cedar Point Nursery v. Hassid, the Court was clear that the government must compensate for their takings regardless of circumstance. “It is time for the government to stop wasting everyone's time and money and simply ‘pay for what it takes,’ as the Supreme Court commanded in Cedar Point,” Berger wrote.
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