Author: Vern Kepler, Wheatland, N.D.,
I have been reading a U.S. Supreme Court ruling of Dec. 4:
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“Arkansas Game and Fish Commission v. United States”.
This is a Fifth Amendment case that has to do with the taking of property for public use without just compensation, permanent or temporary – flooding in this case. In the court’s opinion, the question is whether a taking may occur, within the meaning of Takings Clause of the Fifth Amendment, when the government-induced flood invasions, although repetitive, are temporary.
The court made it clear that recurrent flooding, even of finite duration, is not exempt from Takings Clause liability.
It would appear the victims of the Fargo diversion’s “dam” have a strong case under the Takings Clause of the Fifth Amendment because Fargo, Cass County, the Army Corps of Engineers, planning and designing a non-flood area for water storage, however temporary, will cause a loss of value, loss of marketability for the affected property owners, within the Fargo flood water storage area. Additionally, this has affected school districts because of the loss of taxable valuation.
There is no doubt the diversion will damage both upstream and downstream communities.
I can attest to instances in the past when we were residents of Forest River Subdivision for more than 20 years. They raised a road to act as a dike and divert water, cut through highways, installed large culverts and Bailey bridges, all with the intent of hurting someone else for their benefit. That was in 1997.
That is the primary reason we live neither north nor south of Fargo, but west in a higher elevation. I saw it coming. So I have a lot of empathy for those south and north of Fargo, as well as school systems that are adversely affected by the reduction of value.
Perhaps this latest Supreme Court ruling might be a shot across the bow, and give hope to those who spent a lifetime building their dream, only to have it destroyed.