648 F.3d 1377
Fed. Cir.2011Background
- The Arkansas Game and Fish Commission owns 23,000 acres of the Dave Donaldson Black River Wildlife Management Area, operated as a timber-harvest and hunting preserve.
- Clearwater Dam, completed in 1948 upstream in Missouri, is controlled by the Army Corps of Engineers under a Water Control Manual that governs release rates to manage downstream flooding.
- From 1993 to 2000, the Corps implemented temporary deviations from the 1953 plan’s normal releases to aid agriculture, recreation, and other purposes, without permanently revising the manual.
- The Commission argued these deviations caused prolonged flooding in the Management Area during the growing season, injuring hardwood timber and altering habitat.
- The Court of Federal Claims awarded the Commission damages for a temporary flowage easement, but the Federal Circuit reversed, concluding deviations were temporary and not a taking.
- The court found the deviations were explicitly interim/temporary and that the Corps later reverted to the original 1953 plan, avoiding a permanent or inevitably recurring invasion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether temporary deviations can support a taking of a flowage easement | Arkansas Commission asserted temporary deviations caused taking | United States argued temporary deviations cannot be inherently recurring takings | Temporary deviations cannot constitute a taking |
| Whether flooding from deviations was substantial and predictable enough to be a taking | Deviations caused substantial, predictable flooding harming timber | Flooding was not inevitably recurring and thus not a taking | Court did not decide—held unnecessary since deviations were temporary |
| Whether the government action should be treated as a permanent versus temporary flood control policy | Deviations created a compensable taking regardless of duration | Deviations were temporary interim plans and not a permanent policy | Deviations were temporary and not a taking; reversed Claims Court |
Key Cases Cited
- United States v. Dickinson, 331 U.S. 745 (1947) (taking occurred from permanent flood influence despite reclamation)
- United States v. Cress, 243 U.S. 316 (1917) (permanent or inevitably recurring overflows establish a taking)
- Sanguinetti v. United States, 264 U.S. 146 (1924) (injury must be actual and direct; indirect overflow treated as tort absent taking)
- Ridge Line, Inc. v. United States, 346 F.3d 1346 (2003) (intermittent flooding can be a taking when inevitably recurring; temporary floods require permanence for taking)
- Barnes v. United States, 538 F.2d 865 (Ct. Cl. 1976) (flooding must be inevitably recurring to be a taking; temporary events often tort)
- Fromme v. United States, 412 F.2d 1192 (Ct. Cl. 1969) (temporary spoil bank flooding not a taking where effects not inevitably recurring)
- Cooper v. United States, 827 F.2d 762 (Fed. Cir. 1987) (timber destruction from flooding during construction can be takings; temporary flooding may yield compensation)
- Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (physical occupation of property is a takings concern)
- National By-Products, Inc. v. United States, 405 F.2d 1256 (Ct. Cl. 1969) (flooding cases show diversity of taking outcomes; inevitably recurring floods matter)
- Eyherabide v. United States, 345 F.2d 565 (Ct. Cl. 1965) (temporary takings framework recognized in flood cases)
- Armstrong v. United States, 364 U.S. 40 (1960) (destruction of property can be compensable under Fifth Amendment)