AR Game & Fish Comm’n v. United States

Arkansas Game and Fish Commission owns and manages the Donaldson Black River Wildlife Management Area, 23,000 acres with multiple hardwood species and used for recreation and hunting. In 1948, the U.S. Army Corps of Engineers constructed Clearwater Dam upstream from the Area and adopted the Water Control Manual, setting seasonally varying rates for release of water from the Dam. From 1993-2000, the Corps, at the request of farmers, authorized deviations from the Manual that extended flooding into peak timber growing season. The Commission objected that deviations adversely impacted the Area, and opposed a proposal to make deviations part of the permanent water-release plan. After testing, the Corps abandoned the proposed Manual revision and ceased temporary deviations. The Commission sued, alleging that the deviations caused sustained flooding during growing season and that the cumulative impact of the flooding caused destruction of Area timber and substantial change in the terrain, necessitating costly reclamation. The Claims Court judgment ($5,778,757) in favor of the Commission was reversed by the Federal Circuit, which held that government-induced flooding can support a taking claim only if “permanent or inevitably recurring.” The Supreme Court reversed and remanded. Government-induced flooding of limited duration may be compensable. There is no blanket temporary-flooding exception to Takings Clause jurisprudence and no reason to treat flooding differently than other government intrusions. While the public interests are important, they are not categorically different from interests at stake in other takings cases. When regulation or temporary physical invasion by government interferes with private property, time is a factor in determining the existence of a compensable taking, as are the degree to which the invasion is intended or the foreseeable result of authorized government action, the character of the land, the owner’s “reasonable investment-backed expectations,” and the severity of the interference.

AR Game & Fish Comm’n v. United States