Will water move uphill toward money? Last week’s U.S. Supreme Court decision, Kelo v. City of New London, makes it more likely. Here’s how.

The Kelo case is the latest challenge to the 5th Amendment’s constraints on governmental seizure of private property. In a 5-4 decision, the Court held that the government can transfer property from one private holder to another for the sole purpose of economic development This ruling has subtle and pernicious implications for the Gallatin Valley.

While economic development is important, secure property rights are imperative to civil society. The 1960s mantra, “Property Is Theft,” is dangerous nonsense. Our founders understood the frailties of men and designed our system of government to protect the weak from the strong. Property rights are the first line of defense.

They understood from historical experience that the rich usually take care of themselves quite nicely. It’s those of more modest means who need their rights secured. Ignoring our founders' logic, groups such as the Community Rights Counsel consign the weak to suffer at the hands of the wealthy, powerful, and well-connected.

Justice Thomas understands this. In his dissent he wrote: “The consequences of today’s decision are not difficult to predict, and promise to be harmful. Allowing the government to take property ... to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities.... Regrettably, the predictable consequence of the Court’s decision will be to exacerbate these effects.”

How could this Connecticut case possibly affect citizens of Gallatin County? Ag is suffering financial woes. Profit margins are vanishingly small. Economic development at Big Sky trumps ag production by orders of magnitude.

Consider possible implications for the West Gallatin River. Twenty-seven legally recognized irrigation diversions exist between Big Sky and the confluence of the East and West Gallatin. Several hundred farmers, ranchers, and homeowners hold these rights. The best, most secure ones are generations old. My family’s date to the 1860s. This is not trivial, ephemeral property. Or, after Kelo, is it?

Traditionally, eminent domain has been used to seize private lands for either explicit public ownership (an interstate highway) or for private ownership dedicated expressly to public use (a railroad). In the Kelo case, the Supreme Court ruled that the “public use” test can be met if a project generates indirect economic benefits, e.g., increased tax revenue and job creation.

The logical implication of Kelo is that West Gallatin irrigation water could be seized for higher-value uses, uphill in Big Sky. Think this far-fetched? Recall the sorry history of Montana’s legislature in the early 20th century.

Strong forces are emerging. I just learned that down in the Valley a new pump has been installed to move water three miles uphill. It will irrigate a new golf course at a fourth-generation cattle ranch.

Wallace Stegner reminds us that west of the 100th meridian, where water is scarce, green trumps brown. But green isn’t only grass, alfalfa, and grain; it’s also money. The use of eminent domain to coerce ranchers into selling to developers is a real threat. This would be a blow to our agricultural heritage and individual liberties.

In her dissenting opinion, Justice O’Connor asked, “Who among us can say she already makes the most productive or attractive possible use of her property? The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”

Or a multi-generational family ranch with a brand-new recreational development. If the farm is not economically viable, we should not support subsidies to keep it stumbling along. But it is a gross injustice when government takes private property to increase economic growth and tax revenue.

Justice Stevens concludes the majority decision by asserting that states may bolster their own eminent domain policies, as Utah did in mid-March. “We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power.” Prescriptive legislation in Montana to protect property rights from “economic development” takings would help protect Montana’s Susette Keloes, as well as our storied water legacy.