# Arkansas Game and Fish Commission v. United States

Cite as: Ark. Game & Fish Comm'n v. United States, 568 U.S. 23 (2012)
Supreme Court of the United States
568 U.S. 23
ARKANSAS GAME AND FISH COMMISSION v. UNITED STATES
Certiorari to the United States Court of Appeals for the Federal Circuit
No. 11-597 Argued: Oct. 3, 2012 --- Decided: Dec. 4, 2012
Petitioner, Arkansas Game and Fish Commission (Commission), owns and manages the Dave Donaldson Black River Wildlife Management Area (Management Area or Area), which comprises 23,000 acres along the Black River that are forested with multiple hardwood oak species and serve as a venue for recreation and hunting. In 1948, the U.S. Army Corps of Engineers (Corps) constructed the Clearwater Dam (Dam) upstream from the Management Area and adopted a plan known as the Water Control Manual (Manual), which sets seasonally varying rates for the release of water from the Dam. Periodically from 1993 until 2000, the Corps, at the request of farmers, authorized deviations from the Manual that extended flooding into the Management Area's peak timber growing season. The Commission objected to the deviations on the ground that they adversely impacted the Management Area, and opposed the Corps' proposal to make the temporary deviations part of the Manual's permanent water-release plan. After testing the effect of the deviations, the Corps abandoned the proposed Manual revision and ceased its temporary deviations.
The Commission sued the United States, alleging that the temporary deviations constituted a taking of property that entitled the Commission to compensation. The Commission maintained that the deviations caused sustained flooding during tree-growing season, and that the cumulative impact of the flooding caused the destruction of timber in the Area and a substantial change in the character of the terrain, necessitating costly reclamation measures. The Court of Federal Claims' judgment in favor of the Commission was reversed by the Federal Circuit. The Court of Appeals acknowledged that temporary government action may give rise to a takings claim if permanent action of the same character would constitute a taking. It held, however, that government-induced flooding can give rise to a taking claim only if the flooding is "permanent or inevitably recurring." The Federal Circuit understood this conclusion to be dictated by Sanguinetti v. United States, 264 U.S. 146, 150, and United States v. Cress, 243 U.S. 316, 328.
Held: Government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. Pp. 31–40.
[p24] (a) No magic formula enables a court to judge, in every case, whether a given government interference with property is a taking. This Court has drawn some bright lines, but in the main, takings claims turn on situation-specific factual inquiries. See Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124.
As to the question whether temporary flooding can ever give rise to a takings claim, this Court has ruled that government-induced flooding, Pumpelly v. Green Bay Co., 13 Wall. 166, and seasonally recurring flooding, Cress, 243 U.S., at 328, can constitute takings. The Court has also ruled that takings temporary in duration can be compensable. E.g., United States v. Causby, 328 U.S. 256, 266. This Court's precedent thus indicates that government-induced flooding of limited duration may be compensable. None of the Court's decisions authorizes a blanket temporary-flooding exception to the Court's Takings Clause jurisprudence, and the Court declines to create such an exception in this case. Pp. 31–34.
(b) In advocating a temporary-flooding exception, the Government relies primarily on Sanguinetti, 264 U.S. 146, which held that no taking occurred when a government-constructed canal overflowed onto the claimant's land. In its opinion, the Court summarized prior flooding cases as standing for the proposition that "in order to create an enforceable liability against the Government, it is, at least, necessary that the overflow be the direct result of the structure, and constitute an actual, permanent invasion of the land." Id., at 149. The Government urges the Court to extract from the quoted words a definitive rule that there can be no temporary taking caused by floods. But the Court does not read the passing reference to permanence in Sanguinetti as having done so much work. Sanguinetti was decided in 1924, well before the World War II–era cases and First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, in which the Court first homed in on the matter of compensation for temporary takings. There is no suggestion in Sanguinetti that flooding cases should be set apart from the mine run of takings claims.
The Court thus finds no solid grounding in precedent for setting flooding apart from other government intrusions on property. And the Government has presented no other persuasive reason to do so. Its primary argument is that reversing the Federal Circuit's decision risks disrupting public works dedicated to flood control. While the public interests here are important, they are not categorically different from the interests at stake in myriad other Takings Clause cases in which this Court has rejected similar arguments when deployed to urge blanket exemptions from the Fifth Amendment's instruction.
[p25] The Government argues in the alternative that damage to downstream property, however foreseeable, is collateral or incidental; it is not aimed at any particular landowner and therefore is not compensable under the Takings Clause. The Court expresses no opinion on this claim, which was first tendered at oral argument and not aired in the courts below. For the same reason, the Court declines to address the bearing, if any, of Arkansas water-rights law on this case. Pp. 34–38.
(c) When regulation or temporary physical invasion by government interferes with private property, time is a factor in determining the existence vel non of a compensable taking. See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435, n.12. Also relevant to the takings inquiry is the degree to which the invasion is intended or is the foreseeable result of authorized government action. See, e.g., John Horstmann Co. v. United States, 257 U.S. 138, 146. So, too, are the character of the land at issue and the owner's "reasonable investment-backed expectations" regarding the land's use, Palazzolo v. Rhode Island, 533 U.S. 606, 618, as well as the severity of the interference, see, e.g., Penn Central, 438 U.S., at 130–131. In concluding that the flooding was foreseeable in this case, the Court of Federal Claims noted the Commission's repeated complaints to the Corps about the destructive impact of the successive planned deviations and determined that the interference with the Commission's property was severe. The Government, however, challenged several of the trial court's factfindings, including those relating to causation, foreseeability, substantiality, and the amount of damages. Because the Federal Circuit rested its decision entirely on the temporary duration of the flooding, it did not address those challenges, which remain open for consideration on remand. Pp. 38–40.
637 F.3d 1366, reversed and remanded.
GINSBURG, J., delivered the opinion of the Court, in which all other Members joined, except KAGAN, J., who took no part in the consideration or decision of the case.
James F. Goodhart argued the cause for petitioner. With him on the briefs were Julie DeWoody Greathouse, Matthew N. Miller, Kimberly D. Logue, and John P. Marks.
Deputy Solicitor General Kneedler argued the cause for the United States. With him on the brief were Solicitor General Verrilli, Assistant Attorney General Moreno, Ben- [p26] jamin J. Horwich, William B. Lazarus, Katherine J. Barton, Robert J. Lundman, and Earl H. Stockdale, Jr.

## Notes

* ↑ Briefs of amici curiae urging reversal were filed for the National Federation of Independent Business Small Business Legal Center et al. by Karen R. Harned, Christopher M. Whitcomb, Thomas J. Ward, Amy C. Chai, Ellen Steen, Scott Horngren, John C. Eastman, and Anthony T. Caso; for the Owners' Counsel of America by Robert H. Thomas; for the Pacific Legal Foundation et al. by R. S. Radford, Brian T. Hodges, Ilya Shapiro, and Martin S. Kaufman; for the Washington Legal Foundation et al. by Richard A. Samp; and for the Wolfsen Land and Cattle Co. et al. by Nancie G. Marzulla and Roger Marzulla.
Briefs of amici curiae urging affirmance were filed for the International Municipal Lawyers Association et al. by John D. Echeverria; and for Professors of Law Teaching in the Property Law and Water Rights Fields by Robert H. Abrams, pro se.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse