(Slip Opinion) OCTOBER TERM, 2012 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

ARKANSAS GAME AND FISH COMMISSION v. 

UNITED STATES
 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE FEDERAL CIRCUIT 

No. 11–597. Argued October 3, 2012—Decided December 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 
 

 

 

2 ARKANSAS GAME AND FISH COMM’N v. UNITED STATES 

Syllabus 

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. 6–15.

(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. 6–9.

(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 
 

 

Cite as: 568 U. S. ____ (2012) 3 

Syllabus 

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. 

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. 9–13.

(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. 14–15. 

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. 
 

 

_________________ 

_________________ 

Cite as: 568 U. S. ____ (2012) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 11–597 

ARKANSAS GAME AND FISH COMMISSION, 

PETITIONER v. UNITED STATES
 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FEDERAL CIRCUIT
 

[December 4, 2012]

 JUSTICE GINSBURG delivered the opinion of the Court. 

Periodically from 1993 until 2000, the U. S. Army Corps

of Engineers (Corps) authorized flooding that extended

into the peak growing season for timber on forest land

owned and managed by petitioner, Arkansas Game and 

Fish Commission (Commission). Cumulative in effect, the 

repeated flooding damaged or destroyed more than 18 

million board feet of timber and disrupted the ordinary 

use and enjoyment of the Commission’s property. The 

Commission sought compensation from the United States 

pursuant to the Fifth Amendment’s instruction: “[N]or

shall private property be taken for public use, without

just compensation.” The question presented is whether a 

taking may occur, within the meaning of the Takings 

Clause, when government-induced flood invasions, although repetitive, are temporary.

Ordinarily, this Court’s decisions confirm, if government 

action would qualify as a taking when permanently continued, temporary actions of the same character may also

qualify as a taking. In the instant case, the parties and 
 

2 ARKANSAS GAME AND FISH COMM’N v. UNITED STATES 

Opinion of the Court 

the courts below divided on the appropriate classification

of temporary flooding. Reversing the judgment of the 

Court of Federal Claims, which awarded compensation to

the Commission, the Federal Circuit held, 2 to 1, that 

compensation may be sought only when flooding is “a permanent or inevitably recurring condition, rather than an 

inherently temporary situation.” 637 F. 3d 1366, 1378 

(2011). We disagree and conclude that recurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability. 

I 

A 

The Commission owns the Dave Donaldson Black River 

Wildlife Management Area (Management Area or Area),

which comprises 23,000 acres along both banks of the 

Black River in northeast Arkansas. The Management

Area is forested with multiple hardwood timber species 

that support a variety of wildlife habitats. The Commission operates the Management Area as a wildlife and 

hunting preserve, and also uses it as a timber resource,

conducting regular harvests of timber as part of its forestmanagement efforts. Three types of hardwood oak species—nuttall, overcup, and willow—account for 80 percent 

of the trees in the Management Area. The presence of 

these hardwood oaks is essential to the Area’s character as 

a habitat for migratory birds and as a venue for recreation

and hunting.

The Clearwater Dam (Dam) is located 115 miles upstream from the Management Area. The Corps constructed 

the Dam in 1948, and shortly thereafter adopted a plan

known as the Water Control Manual (Manual) to determine the rates at which water would be released from the 

Dam. The Manual sets seasonally varying release rates, 

but permits planned deviations from the prescribed rates 

for agricultural, recreational, and other purposes. 
 

Cite as: 568 U. S. ____ (2012) 3 

Opinion of the Court 

In 1993, the Corps approved a planned deviation in

response to requests from farmers. From September to

December 1993, the Corps released water from the Dam at 

a slower rate than usual, providing downstream farmers 

with a longer harvest time. As a result, more water than 

usual accumulated in Clearwater Lake behind the Dam. 

To reduce the accumulation, the Corps extended the period in which a high amount of water would be released.

The Commission maintained this extension yielded downstream flooding in the Management Area, above historical 

norms, during the tree-growing season, which runs from

April to October. If the Corps had released the water 

more rapidly in the fall of 1993, in accordance with the

Manual and with past practice, there would have been 

short-term waves of flooding which would have receded

quickly. The lower rate of release in the fall, however, 

extended the period of flooding well into the following 

spring and summer. While the deviation benefited farmers, it interfered with the Management Area’s treegrowing season. 

The Corps adopted similar deviations each year from

1994 through 2000. The record indicates that the decision 

to deviate from the Manual was made independently in 

each year and that the amount of deviation varied over the 

span of years. Nevertheless, the result was an unbroken 

string of annual deviations from the Manual. Each deviation lowered the rate at which water was released during

the fall, which necessitated extension of the release period

into the following spring and summer. During this span of 

years the Corps proposed Manual revisions that would 

have made its temporary deviations part of the permanent 

water-release plan. On multiple occasions between 1993

and 2000, the Commission objected to the temporary 

deviations and opposed any permanent revision to the

Manual, on the ground that the departures from the traditional water-release plan adversely impacted the Man-
 

 

4 ARKANSAS GAME AND FISH COMM’N v. UNITED STATES 

Opinion of the Court 

agement Area. Ultimately, the Corps tested the effect of

the deviations on the Management Area. It thereupon

abandoned the proposal to permanently revise the Manual

and, in 2001, ceased its temporary deviations. 

B 

In 2005, the Commission filed the instant lawsuit 

against the United States, claiming that the temporary 

deviations from the Manual constituted a taking of property that entitled the Commission to compensation. The 

Commission maintained that the deviations caused sustained flooding of its land during the tree-growing season. 

The cumulative impact of this flooding over a six-year

period between 1993 and 1999, the Commission alleged,

resulted in the destruction of timber in the Management

Area and a substantial change in the character of the 

terrain, which necessitated costly reclamation measures.

Following a trial, the Court of Federal Claims ruled in

favor of the Commission and issued an opinion and order

containing detailed findings of fact. 87 Fed. Cl. 594 

(2009).

The Court of Federal Claims found that the forests in 

the Management Area were healthy and flourishing before

the flooding that occurred in the 1990’s, and that the 

forests had been sustainably managed for decades under 

the water-release plan contained in the Manual. Id., at 

631. It further found that the Commission repeatedly 

objected to the deviations from the Manual and alerted the 

Corps to the detrimental effect the longer period of flooding would have on the hardwood timber in the Management Area. Id., at 604. 

As found by the Court of Federal Claims, the flooding 

caused by the deviations contrasted markedly with historical flooding patterns. Between 1949 and 1992, the river 

level near the Management Area reached six feet an average of 64.7 days per year during the growing season; the 

number of such days had been even lower on average 
Cite as: 568 U. S. ____ (2012) 5 

Opinion of the Court 

before the Clearwater Dam was built. Between 1993 and 

1999, however, the river reached the same level an average of 91.14 days per year, an increase of more than 40 

percent over the historic average. Although the Management Area lies in a floodplain, in no previously recorded 

time span did comparable flooding patterns occur. Id., at 

607–608. Evidence at trial indicated that half of the nuttall oaks in the Management Area were saturated with

water when the river level was at six feet, id., at 608; the 

evidence further indicated that the saturation of the soil 

around the trees’ root systems could persist for weeks even 

after the flooding had receded. Id., at 627. 

The court concluded that the Corps’ deviations caused 

six consecutive years of substantially increased flooding,

which constituted an appropriation of the Commission’s

property, albeit a temporary rather than a permanent 

one. Important to this conclusion, the court emphasized 

the deviations’ cumulative effect. The trees were subject

to prolonged periods of flooding year after year, which 

reduced the oxygen level in the soil and considerably weakened the trees’ root systems. The repeated annual flooding for six years altered the character of the property to

a much greater extent than would have been shown if

the harm caused by one year of flooding were simply multiplied by six. When a moderate drought occurred in 1999

and 2000, the trees did not have the root systems necessary to sustain themselves; the result, in the court’s

words, was “catastrophic mortality.” Id., at 632. More 

than 18 million board feet of timber were destroyed or 

degraded. Id., at 638–640. 

This damage altered the character of the Management

Area. The destruction of the trees led to the invasion of 

undesirable plant species, making natural regeneration of 

the forests improbable in the absence of reclamation efforts. Id., at 643. To determine the measure of just 

compensation, the Court of Federal Claims calculated the 
 

 

6 ARKANSAS GAME AND FISH COMM’N v. UNITED STATES 

Opinion of the Court 

value of the lost timber and the projected cost of the reclamation and awarded the Commission $5.7 million. 

The Federal Circuit reversed. It acknowledged that in

general, temporary government action may give rise to a

takings claim if permanent action of the same character 

would constitute a taking. But it held that “cases involving flooding and [flowage] easements are different.” 637 

F. 3d, at 1374. Government-induced flooding can give rise

to a taking claim, the Federal Circuit concluded, only if

the flooding is “permanent or inevitably recurring.” Id., 

at 1378. The Court of Appeals understood this conclusion

to be dictated by this Court’s decisions in Sanguinetti v. 

United States, 264 U. S. 146, 150 (1924), and United 

States v. Cress, 243 U. S. 316, 328 (1917). We granted 

certiorari to resolve the question whether government

actions that cause repeated floodings must be permanent 

or inevitably recurring to constitute a taking of property.

566 U. S. ___ (2012). 

II 

The Takings Clause is “designed to bar Government 

from forcing some people alone to bear public burdens 

which, in all fairness and justice, should be borne by the

public as a whole.” Armstrong v. United States, 364 U. S. 

40, 49 (1960). See also First English Evangelical Lutheran 

Church of Glendale v. County of Los Angeles, 482 U. S. 

304, 318–319 (1987); Penn Central Transp. Co. v. New 

York City, 438 U. S. 104, 123–125 (1978). And “[w]hen the

government physically takes possession of an interest in

property for some public purpose, it has a categorical duty

to compensate the former owner.” Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 

535 U. S. 302, 322 (2002) (citing United States v. Pewee 

Coal Co., 341 U. S. 114, 115 (1951)). These guides are

fundamental in our Takings Clause jurisprudence. We have 

recognized, however, that no magic formula enables a 
 

 

Cite as: 568 U. S. ____ (2012) 7 

Opinion of the Court 

court to judge, in every case, whether a given government

interference with property is a taking. In view of the 

nearly infinite variety of ways in which government actions or regulations can affect property interests, the

Court has recognized few invariable rules in this area. 

True, we have drawn some bright lines, notably, the

rule that a permanent physical occupation of property

authorized by government is a taking. Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 426 

(1982). So, too, is a regulation that permanently requires 

a property owner to sacrifice all economically beneficial 

uses of his or her land. Lucas v. South Carolina Coastal 

Council, 505 U. S. 1003, 1019 (1992). But aside from the 

cases attended by rules of this order, most takings claims 

turn on situation-specific factual inquiries. See Penn 

Central, 438 U. S., at 124. With this in mind, we turn to 

the question presented here—whether temporary flooding 

can ever give rise to a takings claim. 

The Court first ruled that government-induced flooding

can constitute a taking in Pumpelly v. Green Bay Co., 13 

Wall. 166 (1872). The Wisconsin Legislature had authorized the defendant to build a dam which led to the creation 

of a lake, permanently submerging the plaintiff’s land.

The defendant argued that the land had not been taken

because the government did not exercise the right of eminent domain to acquire title to the affected property.

Moreover, the defendant urged, the damage was merely 

“a consequential result” of the dam’s construction near the 

plaintiff’s property. Id., at 177. Rejecting that crabbed 

reading of the Takings Clause, the Court held that “where

real estate is actually invaded by superinduced additions

of water, earth, sand, or other material . . . so as to effectually destroy or impair its usefulness, it is a taking, 

within the meaning of the Constitution.” Id., at 181. 

Following Pumpelly, the Court recognized that seasonally recurring flooding could constitute a taking. United 
 

8 ARKANSAS GAME AND FISH COMM’N v. UNITED STATES 

Opinion of the Court 

States v. Cress, 243 U. S. 316 (1917), involved the Government’s construction of a lock and dam, which subjected 

the plaintiff’s land to “intermittent but inevitably recurring overflows.” Id., at 328. The Court held that the 

regularly recurring flooding gave rise to a takings claim

no less valid than the claim of an owner whose land was 

continuously kept under water. Id., at 328–329. 

Furthermore, our decisions confirm that takings temporary in duration can be compensable. This principle

was solidly established in the World War II era, when

“[c]ondemnation for indefinite periods of occupancy [took

hold as] a practical response to the uncertainties of the 

Government’s needs in wartime.” United States v. Westinghouse Elec. & Mfg. Co., 339 U. S. 261, 267 (1950). In 

support of the war effort, the Government took temporary

possession of many properties. These exercises of government authority, the Court recognized, qualified as 

compensable temporary takings. See Pewee Coal Co., 341 

U. S. 114; Kimball Laundry Co. v. United States, 338 U. S. 

1 (1949); United States v. General Motors Corp., 323 U. S. 

373 (1945). Notably in relation to the question before us,

the takings claims approved in these cases were not confined to instances in which the Government took outright 

physical possession of the property involved. A temporary

takings claim could be maintained as well when government action occurring outside the property gave rise to “a

direct and immediate interference with the enjoyment and

use of the land.” United States v. Causby, 328 U. S. 

256, 266 (1946) (frequent overflights from a nearby airport 

resulted in a taking, for the flights deprived the property

owner of the customary use of his property as a chicken

farm); cf. United States v. Dickinson, 331 U. S. 745, 751 

(1947) (flooding of claimant’s land was a taking even

though claimant successfully “reclaimed most of his land 

which the Government originally took by flooding”). 

Ever since, we have rejected the argument that govern-
 

 

Cite as: 568 U. S. ____ (2012) 9 

Opinion of the Court 

ment action must be permanent to qualify as a taking.

Once the government’s actions have worked a taking of 

property, “no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.” First English, 

482 U. S., at 321. See also Tahoe-Sierra, 535 U. S., at 337 

(“[W]e do not hold that the temporary nature of a land-use

restriction precludes finding that it effects a taking; we

simply recognize that it should not be given exclusive

significance one way or the other.”).

Because government-induced flooding can constitute a

taking of property, and because a taking need not be

permanent to be compensable, our precedent indicates

that government-induced flooding of limited duration may

be compensable. No decision of this Court authorizes 

a blanket temporary-flooding exception to our Takings

Clause jurisprudence, and we decline to create such an

exception in this case. 

III 

In advocating a temporary-flooding exception, the Government relies primarily on Sanguinetti, 264 U. S. 146. 

That case involved a canal constructed by the Government 

connecting a slough and a river. The claimant’s land was 

positioned between the slough and the river above the 

canal. The year after the canal’s construction, a “flood of

unprecedented severity” caused the canal to overflow onto 

the claimant’s land; less severe flooding and overflow

occurred in later years. Id., at 147. 

The Court held there was no taking on these facts. This 

outcome rested on settled principles of foreseeability and 

causation. The Court emphasized that the Government

did not intend to flood the land or have “any reason to

expect that such [a] result would follow” from construction

of the canal. Id., at 148. Moreover, the property was 

subject to seasonal flooding prior to the construction of the 
 

 

10 ARKANSAS GAME AND FISH COMM’N v. UNITED STATES 

Opinion of the Court 

canal, and the landowner failed to show a causal connection between the canal and the increased flooding, which

may well have been occasioned by changes in weather 

patterns. See id., at 149 (characterizing the causal relationship asserted by the landowner as “purely conjectural”). These case-specific features were more than

sufficient to dispose of the property owner’s claim. 

In the course of the Sanguinetti decision, however, 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.” Ibid. 

The Government would have us extract from this statement a definitive rule that there can be no temporary 

taking caused by floods.

We do not read so much into the word “permanent” as it

appears in a nondispositive sentence in Sanguinetti. That 

case, we note, was decided in 1924, well before the World 

War II-era cases and First English, in which the Court 

first homed in on the matter of compensation for temporary takings. That time factor, we think, renders understandable the Court’s passing reference to permanence. If 

the Court indeed meant to express a general limitation on

the Takings Clause, that limitation has been superseded 

by subsequent developments in our jurisprudence. 

There is certainly no suggestion in Sanguinetti that 

flooding cases should be set apart from the mine run of 

takings claims. The sentence in question was composed to

summarize the flooding cases the Court had encountered

up to that point, which had unexceptionally involved

permanent, rather than temporary, government-induced 

flooding. 264 U. S., at 149. See Cress, 243 U. S., at 328; 

United States v. Lynah, 188 U. S. 445, 469 (1903). But as 

just explained, no distinction between permanent and

temporary flooding was material to the result in San-
 

 

 

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Opinion of the Court 

guinetti. We resist reading a single sentence unnecessary 

to the decision as having done so much work. In this regard, we recall Chief Justice Marshall’s sage observation 

that “general expressions, in every opinion, are to be taken 

in connection with the case in which those expressions are

used. If they go beyond the case, they may be respected,

but ought not to control the judgment in a subsequent suit 

when the very point is presented for decision.” Cohens v. 

Virginia, 6 Wheat. 264, 399 (1821). 

The Government also asserts that the Court in Loretto 

interpreted Sanguinetti the same way the Federal Circuit 

did in this case. That assertion bears careful inspection.

A section of the Court’s opinion in Loretto discussing

permanent physical occupations parenthetically quotes 

Sanguinetti’s statement that flooding is a taking if it

constitutes an “actual, permanent invasion of the land.”

458 U. S., at 428. But the first rule of case law as well as 

statutory interpretation is: Read on. Later in the Loretto 

opinion, the Court clarified that it scarcely intended to

adopt a “flooding-is-different” rule by the obscure means of

quoting parenthetically a fragment from a 1924 opinion.

The Court distinguished permanent physical occupations 

from temporary invasions of property, expressly including 

flooding cases, and said that “temporary limitations are

subject to a more complex balancing process to determine 

whether they are a taking.” Id., at 435, n. 12. 

There is thus no solid grounding in precedent for setting flooding apart from all other government intrusions on 

property. And the Government has presented no other 

persuasive reason to do so. Its primary argument is of the 

in for a penny, in for a pound genre: reversing the decision

below, the Government worries, risks disruption of public works dedicated to flood control. “[E]very passing

flood attributable to the government’s operation of a floodcontrol project, no matter how brief,” the Government

hypothesizes, might qualify as a compensable taking. 
 

12 ARKANSAS GAME AND FISH COMM’N v. UNITED STATES 

Opinion of the Court 

Brief for United States 29. To reject a categorical bar to

temporary-flooding takings claims, however, is scarcely

to credit all, or even many, such claims. It is of course incumbent on courts to weigh carefully the relevant factors 

and circumstances in each case, as instructed by our decisions. See infra, at 14. 

The slippery slope argument, we note, is hardly novel or

unique to flooding cases. Time and again in Takings

Clause cases, the Court has heard the prophecy that recognizing a just compensation claim would unduly impede

the government’s ability to act in the public interest. 

Causby, 328 U. S., at 275 (Black, J., dissenting); Loretto, 

458 U. S., at 455 (Blackmun, J., dissenting). We have 

rejected this argument when deployed to urge blanket 

exemptions from the Fifth Amendment’s instruction. 

While we recognize the importance of the public interests 

the Government advances in this case, we do not see them 

as categorically different from the interests at stake in 

myriad other Takings Clause cases. The sky did not fall 

after Causby, and today’s modest decision augurs no deluge of takings liability.

Tellingly, the Government qualifies its defense of the

Federal Circuit’s exclusion of flood invasions from temporary takings analysis. It sensibly acknowledges that a 

taking might be found where there is a “sufficiently prolonged series of nominally temporary but substantively 

identical deviations.” Brief for United States 21. This 

concession is in some tension with the categorical rule 

adopted by the Court of Appeals. Indeed, once it is recognized that at least some repeated nonpermanent flooding 

can amount to a taking of property, the question presented 

to us has been essentially answered. Flooding cases, like

other takings cases, should be assessed with reference

to the “particular circumstances of each case,” and not by 

resorting to blanket exclusionary rules. United States v. 

Central Eureka Mining Co., 357 U. S. 155, 168 (1958) 
 

Cite as: 568 U. S. ____ (2012) 13 

Opinion of the Court 

(citing Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 416 

(1922)). See Penn Central, 438 U. S., at 124. 

At oral argument, the Government tendered a different 

justification for the Federal Circuit’s judgment, one not

aired in the courts below, and barely hinted at in the brief

the Government filed in this Court: Whether the damage 

is permanent or temporary, damage to downstream property, however foreseeable, is collateral or incidental; it is

not aimed at any particular landowner and therefore does 

not qualify as an occupation compensable under the Takings Clause. Tr. of Oral Arg. 30–39; Brief for United 

States 26–27. “[M]indful that we are a court of review,

not of first view,” Cutter v. Wilkinson, 544 U. S. 709, 

718, n. 7 (2005), we express no opinion on the proposed 

upstream/downstream distinction and confine our opinion 

to the issue explored and decided by the Federal Circuit. 

For the same reason, we are not equipped to address the

bearing, if any, of Arkansas water-rights law on this case.1 

The determination whether a taking has occurred includes 

consideration of the property owner’s distinct investmentbacked expectations, a matter often informed by the law in

force in the State in which the property is located. Lucas, 

505 U. S., at 1027–1029; Phillips v. Washington Legal 

Foundation, 524 U. S. 156, 164 (1998). But Arkansas law 

was not examined by the Federal Circuit, and therefore is 

not properly pursued in this Court. Whether arguments

for an upstream/downstream distinction and on the relevance of Arkansas law have been preserved and, if so,

whether they have merit, are questions appropriately 

addressed to the Court of Appeals on remand. See Glover 

v. United States, 531 U. S. 198, 205 (2001). 

—————— 

1Arkansas water law is barely discussed in the parties’ briefs, see

Brief for United States 43, but has been urged at length in a brief 

amicus curiae filed by Professors of Law Teaching in the Property Law

and Water Rights Fields. 
 

14 ARKANSAS GAME AND FISH COMM’N v. UNITED STATES 

Opinion of the Court 

IV 

We rule today, simply and only, that governmentinduced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When 

regulation or temporary physical invasion by government

interferes with private property, our decisions recognize,

time is indeed a factor in determining the existence 

vel non of a compensable taking. See Loretto, 458 U. S., 

at 435, n. 12 (temporary physical invasions should be assessed by case-specific factual inquiry); Tahoe-Sierra, 535 

U. S., at 342 (duration of regulatory restriction is a factor

for court to consider); National Bd. of YMCA v. United 

States, 395 U. S. 85, 93 (1969) (“temporary, unplanned 

occupation” of building by troops under exigent circumstances is not a taking). 

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 supra, at 9; John 

Horstmann Co. v. United States, 257 U. S. 138, 146 (1921) 

(no takings liability when damage caused by government 

action could not have been foreseen). See also Ridge Line, 

Inc. v. United States, 346 F. 3d 1346, 1355–1356 (CA Fed. 

2003); In re Chicago, Milwaukee, St. Paul & Pacific R. Co., 

799 F. 2d 317, 325–326 (CA7 1986). 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 (2001). For 

example, the Management Area lies in a floodplain below 

a dam, and had experienced flooding in the past. But the 

trial court found the Area had not been exposed to flooding

comparable to the 1990’s accumulations in any other time

span either prior to or after the construction of the Dam. 

See supra, at 4–5. Severity of the interference figures in

the calculus as well. See Penn Central, 438 U. S., at 130– 

131; Portsmouth Harbor Land & Hotel Co. v. United 

States, 260 U. S. 327, 329–330 (1922) (“[W]hile a single act 
 

 

Cite as: 568 U. S. ____ (2012) 15 

Opinion of the Court 

may not be enough, a continuance of them in sufficient 

number and for a sufficient time may prove [a taking].

Every successive trespass adds to the force of the 

evidence.”).

The Court of Federal Claims found that the flooding the

Commission assails was foreseeable. In this regard, the 

court noted the Commission’s repeated complaints to

the Corps about the destructive impact of the successive 

planned deviations from the Water Control Manual. 

Further, the court determined that the interference with 

the Commission’s property was severe: The Commission 

had been deprived of the customary use of the Management Area as a forest and wildlife preserve, as the bottomland hardwood forest turned, over time, into a “headwater 

swamp.” 87 Fed. Cl., at 610 (internal quotation marks 

omitted); see supra, at 5.2 

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. As earlier noted, see supra,

at 13, preserved issues remain open for consideration on 

remand. 

* * * 

For the reasons stated, the judgment of the Court of

Appeals for the Federal Circuit is reversed, and the case is

remanded for further proceedings consistent with this 

opinion. 

It is so ordered. 

—————— 

2The Commission is endeavoring to reclaim the land through a restoration program. The prospect of reclamation, however, does not disqualify a landowner from receipt of just compensation for a taking. 

United States v. Dickinson, 331 U. S. 745, 751 (1947). 
 

16 ARKANSAS GAME AND FISH COMM’N v. UNITED STATES 

Opinion of the Court 

JUSTICE KAGAN took no part in the consideration or 

decision of this case.