Takings under the Fifth Amendment

Mitigation of the impacts related to the Fargo Dam and Diversion are determined by various means depending on where the impacts are located and the amount of impacts imposed.

“Takings” are the methodology for determining mitigation of impacts to those areas outside of the designated staging area.

From the DEIS July 2011, Comments and Response Appendix S.  There were questions and concerns regarding the “Takings Analysis”

The Taking Clause in the Fifth Amendment to the U.S. Constitution in 1791,  reads, “…nor shall private property be taken for public use, without just compensation”.
[ cited source: http://en.wikipedia.org/wiki/Eminent_domain ]

Taking is the act of government to  take/use/impact/lessen the value of a  private citizen’s land for a  given use (usually for a public purpose).

Page 38 From the SDEIS,
Appendix U  Comment – Question C-65:  Impacts Outside Staging Area

Comment C-65: “There will be impacts outside of the designated staging area shown by the Red Lines on the map.  This is misleading and the costs to this additional impacted area are not fully included.  These red lines are a best guess only, and that offers little information and little confidence to the public.”

The Corps Response:

“Stage increases for the 1-percent chance  event outside the defined staging area are expected to be less than 1 foot. All impacted areas outside of the defined staging area will  be analyzed to determine if the impacts constitute a “Taking” that would require compensation under the Fifth Amendment of the U.S. Constitution.”

Pages 15-16 from DEIS,
Appendix S  Comment – Question C-10

Comment C-10: “The final EIS should include a description of  the taking analysis and be  explicit as to why the project does or does not  result in a taking.”

The Corps Response:

“A taking analysis is prepared by our attorneys to advise the decision makers, and is protected by attorney client privilege.  The Corps will provide a summary of the results of the Taking Analysis and a description of the methodology used when analyzing Fifth Amendment takings.”

This Corps Response leads to more questions.

Question 1:  The reference to the  “attorney client relationship” between the Corps and the decision makers  leads one to believe this process is not open and transparent.

Question 2:  What role do the decision makers play?   Do they have some influence as to the extent of  the impacts and mitigation under a Taking Analysis under the Fifth Amendment to the  Constitution?

Question 3:  Is the reluctance to determine the extent/ amount of mitigation funds required by the Taking Analysis is used to hide the real costs of the project.

Question 4:  The “Red Line” is very much in question as it is apparent the Red Line does not define the said flood impacts levels as they exist in reality.

Question 5:  It is remarkable the federal government will use tax dollars to do the Taking Analysis and then hide behind tax paid lawyers, attorney cllient relationship to hide the results of the Taking Analysis from those impacted.

Is it too much to ask that the Corps and the “decision makers”  be above board and show this is an open and transparent process?

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