ATLANTA — The Georgia Constitution gives the state broad authority to exercise police power, but the state Supreme Court clarified the extent of that authority when it comes to private property rights.
In an opinion Wednesday, the state’s high court overturned lower courts that said the state had no obligation to compensate a farming company for crop loss caused by law enforcement activity.
The case stems from a drug-interdiction operation by the Governor’s Drug Suppression Task Force in the summer of 2021.
Three police helicopters and an airplane flew so close to legal hemp crops in Dahlonega that they destroyed two rows of plants.
The owner, Blue 42 Organics, is licensed to grow hemp in Georgia. As required, the company had logged the coordinates of its operations.
But that didn’t stop the police from flying near enough to the company’s crops for the aircraft’s rotor wash and prop wash to cause an estimated $37,000 in damage.
The company sued, and the state Department of Public Safety convinced a trial court that it had no obligation to pay for the damage. The state argued that its use of police power made it “categorically exempt” from the state constitutional prohibition on the taking of private property without “just and adequate” compensation.
The trial court dismissed the case, so the company appealed. Then, the Georgia Court of Appeals affirmed the dismissal.
When the state high court agreed to hear the case, the National Hemp Association filed a brief in support of Blue 42 Organics.
Hemp crops became legal after Congress passed the Agriculture Improvement Act of 2018. The Georgia Legislature followed with its own regulatory law.
The association said in its brief that the federal and state laws would be worthless if the Supreme Court allowed the state to inadvertently destroy hemp crops during what the brief described as “a routine aerial survey for marijuana” in the absence of an emergency.
“If state law enforcement agencies can destroy licensed hemp crops — without checking readily available licensing databases, without coordinating with the regulatory agency that issued the license, and without any obligation to compensate the farmer — then the federal-state regulatory framework that Congress and the Georgia General Assembly built is rendered meaningless,” the association’s brief said.
The outcome turned on the interplay between sovereign immunity, which shields the state from lawsuits; eminent domain, which allows the government to take land when compensating the owner; and on the extent of state police power.
The Georgia Attorney General’s office argued that the crop destruction was caused by police action rather than eminent domain, so the state did not have to compensate the owner.
That argument did not convince the high court.
The opinion, written by Chief Justice Nels S.D. Peterson, said case law allowed police to destroy private property without compensating the owner while either abating a nuisance or acting during “urgent necessity.”
But the Department of Public Safety’s motion to dismiss the case had failed to argue that either condition applied in the crop destruction, the opinion said.
Instead, the agency had argued that it was immune from being required to pay compensation through a “categorical police power exemption.”
That argument did not persuade the high court.
With all justices concurring except one who was disqualified, the Supreme Court reversed the Court of Appeals decision, ruling that the Department of Public Safety had failed to identify a categorical exemption that would apply to such a “routine” police action.
“The Constitution’s promise to protect private property rights would be an empty one if the State is permitted to avoid paying just compensation for taking or damaging private property merely by invoking the police power,” the opinion said.