Department of Public Safety’s drug-interdiction operation was not actionable as an inverse condemnation but was rather an exercise of the State’s police power. Even though the operation’s low-flying aircraft accidentally damaged a hemp farm that, according to the petitioners, complied with the law, the accident does not take the action outside of the police power or render the damage an inverse condemnation. Instead, even mistaken exercise of police power falls qualifies for sovereign immunity.
That said, our cases have articulated a distinction “between eminent domain and the police power; the two powers serve a different set of purposes and are subject to different limitations.”9 The police power of a governing authority is “properly used to regulate property to prevent its use in a manner detrimental to the public interest, while the exercise of eminent domain involves the taking of property because it is needed for public use.”
. . .
And the police power is that power “by which the Government may destroy or regulate the use of property in order to promote the health, morals[,] and safety of the community, and the police power may be exercised without making compensation for the impairment of the use of property or any decrease in the value of property.”
. . .
Even so, Blue 42 counters that because it was operating a legal hemp farm, DPS’s conduct was an invalid exercise of police power. But this argument essentially seeks to impose a requirement that police power must be flawlessly executed for sovereign immunity to apply. That is not the law. To the contrary, in describing the police power, we have explained that “[t]he safeguarding of society by the prosecution of crimes against it is a sovereign attribute inherent in all governments, and for mistakes in exercising this sovereign right there can be no liability against the government without its consent.”13 Given these circumstances, Blue 42’s amended complaint alleges no evidence that would allow it to avoid sovereign immunity and obtain relief from DPS.
