Arkansas Game & Fish Commission v. United States
736 F.3d 1364
Fed. Cir.2013Background
- Arkansas Game and Fish Commission (Commission) owns the Dave Donaldson Black River Wildlife Management Area along the Black River; bottomland hardwoods (nuttall, overcup, willow oaks) were managed for timber and wildlife.
- Clearwater Dam (built by Army Corps) and its 1953 Water Control Manual produced spring releases that caused short-term seasonal flooding but did not cause long-term timber damage.
- From late 1993 through 2000 the Corps approved annual deviations to release patterns to benefit agriculture, producing substantially longer growing-season inundation during 1994–1998; Commission began complaining in 1996.
- After a drought in 1999–2000 many valuable oaks died or were degraded; the Court of Federal Claims found flooding during 1993–2000 damaged roots and made trees susceptible to drought, awarding about $5.6M for timber loss and limited regeneration damages.
- The Federal Circuit initially reversed; the Supreme Court held temporary government-induced flooding can be a taking and remanded to determine causation, foreseeability, severity, duration, and damages.
- On remand the Federal Circuit affirmed the Court of Federal Claims: treating the deviations collectively as a multi-year temporary physical taking (temporary flowage easement) and upholding findings on causation, foreseeability, severity, admissibility of expert evidence, and the limited regeneration award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duration: Were year-by-year deviations sufficiently long to constitute a taking? | Deviations (1993–2000) collectively produced repeated, multi-year flooding that should be assessed as a single seven-year intrusion. | Each deviation was temporary/ad hoc; no single year invasion suffices for a taking. | Held: Treat deviations collectively; seven years of repeated flooding supported a temporary physical taking. |
| Causation: Did deviations cause increased growing-season flooding and timber damage? | Deviations—measured by days above gauge levels—substantially increased flooding and caused root damage that led to drought-related mortality. | Flooding increase was marginal; other factors (rainfall, insects, age) caused damage. | Held: Trial court’s factual findings credited Commission experts; evidence (including Corps’ admissions) supports causation. |
| Foreseeability: Were damaging effects foreseeable to the Corps? | A reasonable investigation would have shown the deviations would increase growing-season inundation and, over years, harm oaks; Commission complained beginning 1996. | Corps did not intend to flood and did not foresee such damage. | Held: Flooding and harm were foreseeable; Corps’ post-hoc site visit confirmed potential to damage trees and complaints put Corps on notice. |
| Severity / Reasonable expectations: Was the increased flooding a sufficiently severe invasion? | The deviations produced unprecedented prolonged growing-season inundation that deprived Commission of customary forest and wildlife uses. | The area is a floodplain; some flooding and periodic damage were to be expected, so intrusion was marginal. | Held: Flooding was unprecedented in duration and severity, interfering with reasonable land-use expectations; supports taking. |
| Damages: Were regeneration damages proved for entire claimed area? | Commission seeks regeneration costs for 6,990 acres (removal of invasive wetland species and replanting). | Commission failed to prove need for regeneration for much of the area to a reasonable certainty. | Held: Award for 349 severely damaged acres affirmed; trial court did not err in denying broader regeneration award. |
| Evidentiary objections: Spoliation and appraisal reliability | Commission’s expert surveys and appraiser testimony were reliable and admissible; loss of cruise maps not prejudicial. | Lost cruise maps and appraiser’s experience-based estimates undermined reliability; evidence should be excluded. | Held: No substantial prejudice from missing maps; appraiser’s long experience makes testimony admissible—challenges go to weight, not admissibility. |
Key Cases Cited
- Ark. Game & Fish Comm’n v. United States, 133 S. Ct. 511 (2012) (Supreme Court: temporary government-induced flooding can constitute a taking)
- Ark. Game & Fish Comm’n v. United States, 637 F.3d 1366 (Fed. Cir. 2011) (prior Federal Circuit reversal addressing temporariness)
- Ark. Game & Fish Comm’n v. United States, 87 Fed. Cl. 594 (Ct. Cl. 2009) (trial court finding of temporary flowage easement and damages)
- Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (distinguishing permanent and temporary physical takings)
- Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327 (1922) (repeated invasions can establish appropriation)
- Jacobs v. United States, 290 U.S. 13 (1933) (incremental increase in flooding impaired land use and supported takings recovery)