Ark. Game & Fish Comm’n v. United States

Ark. Game & Fish Comm’n v. United States, 133 S. Ct. 511 (2012) (holding that (i) government-induced temporary flooding can give rise to a compensable taking claim under the Fifth Amendment, and (ii) on remand, the lower court should consider the duration of compensable taking, character of the land, owner’s expectations about the land’s use, and foreseeability of invasion when determining whether a compensable taking occurred).

Arkansas Game and Fish Commission (“Commission”) owns the Dave Donaldson Black River Wildlife Management Area (“Area”), a 23,000-acre track of land along the Black River.  In 1948, the US Army Corps of Engineers (“Corps”) built the Clearwater Dam upstream from the Area and adopted the Water Control Manual (“Manual”) to set seasonal water release rates.  The Manual allowed deviations from normal release rates for agricultural, recreational, and other purposes.  In 1993, pursuant to farmers’ requests, the Corps approved deviations, allowing a slower than usual water release rate from the dam.  The Corps continued implementing deviations to water release from 1994 through 2000 and proposed to revise the Manual in order to make the temporary deviations permanent.

The Commission opposed Manual revision plans because of a detrimental effect to the Area.  While the deviations benefitted farmers, they interfered with natural habitat and timber growing seasons by causing abnormally long downstream flooding.  After testing the detrimental effects of the deviations on the timber and natural habitat of the Area, the Corps abandoned the Manual revision plans and ceased the temporary deviations.

In 2005, the Commission filed a lawsuit against the United States (“Government”) and sought compensation under the Fifth Amendment Takings Clause.  The Commission claimed that government-induced temporary flooding resulted in the destruction of timber and a substantial change in terrain.  These damages allegedly required costly reclamation measures.  The United States Court of Federal Claims (“claims court”) ruled in favor of the Commission.  The claims court concluded that the cumulative effect of the water release rate was exceptionally damaging to the once flourishing forests of the Area and awarded the Commission $5.7 million in compensation.  The Government appealed.  The United States Court of Appeals for the Federal Circuit (“appeals court”) reversed.  It acknowledged the general rule, stating that temporary governmental action may give rise to a Takings Clause claim if permanent action of the same character would constitute taking.  However, the appeals court held that flooding cases constituted an exception to the general rule and were subject to a compensable taking claim only if flooding was permanent or inevitably occurring.  The Commission appealed, and the United States Supreme Court (“Court”) eventually granted certiorari.

The only issue that the Court addressed was whether government-induced temporary flooding could ever give rise to a compensable taking claim.  Arguing that temporary flooding was an exception to the general rule, the Government’s position was that in order to create liability under the Takings Clause, government-induced flooding needed to be permanent.  Having ruled for the Government, the appeals court had categorically confirmed this exception.  However, the Court disagreed with the Government and the appeals court.  It rejected the Government’s interpretation of the earlier case precedents, which allegedly created the temporary flooding exception.  The Court explained that in support of its position, the Government parsed out stand-alone sentences from the context of prior precedent.  Furthermore, the Court added that subsequent developments in jurisprudence superseded the cases that the Government used to support its position.

The Government’s second argument relied on public policy reasoning.  The Government projected that reversing the appeals court’s holding would disrupt public works in flood control areas.  It asserted that such a ruling would make even the smallest flood, attributable to a flood-control project, qualify for a compensable taking.  The Court rejected this position as a slippery slope argument, noting that this case was no different from other Takings Clause cases that unsuccessfully tried to urge blanket exceptions from the Fifth Amendment without proper justification.

Finally, the Government attempted to address two additional issues: (1) the collateral nature of the flood damage, and (2) the bearing of Arkansas water-right law on this case.  The Court refused to express any opinion with regard to these issues because the parties did not brief the issues or argue them in the lower courts.

Accordingly, Justice Ginsburg delivered the opinion of the Court, reversing the appeals court’s decision and holding that government-induced temporary flooding can give rise to a compensable taking claim under the Fifth Amendment.  The Court noted that the majority of such claims depend on situation-specific, factual inquiries.  Consequently, the Court remanded the case, directing the lower court to consider the duration of compensable taking, owner’s reasonable investment-backed expectations regarding the land’s use, and the degree of foreseeability.  Although the claims court previously ruled that the invasion was foreseeable, the Government challenged this fact-finding on appeal.  Because the appeals court never addressed this challenge, the Court also ruled that the foreseeability issue remain open for consideration on remand.