Arkansas Game & Fish Commission v. United States
133 S. Ct. 511
SCOTUS2012Background
- Arkansas Game and Fish Commission owns and manages a 23,000‑acre timber and wildlife area adjacent to the Black River, relied upon for habitat, recreation, and timber resources.
- The U.S. Army Corps of Engineers operated the Clearwater Dam upstream and used a Water Control Manual to regulate water releases, with occasional deviations for agricultural purposes.
- From 1993 to 2000, the Corps authorized temporary deviations that extended flooding into the Management Area’s tree-growing season, reducing water releases to ease downstream needs.
- The Commission objected to these deviations and opposed integrating them into a permanent revision of the Manual; the Corps tested effects and later ceased the deviations in 2001.
- The Commission sued, alleging temporary deviations caused repeated flooding that destroyed or degraded timber and changed the land’s character, seeking compensation under the Takings Clause.
- The Court of Federal Claims awarded damages; the Federal Circuit reversed, requiring permanency or inevitability of recurrence for a taking.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can temporary government-induced flooding be a taking? | Commission contends repeated temporary floods can constitute a taking based on cumulative impact. | United States argues only permanent or inevitably recurring flooding can be a taking. | Temporary flooding may be a taking; not automatically exempt. |
| Must flooding be permanent or inevitably recurring to be a taking? | Repeating temporary floods can cumulatively amount to a taking. | Cites Sanguinetti to support a permanence/recurrence requirement. | No blanket permanence/recurrence rule; case-specific factors apply. |
| Does Sanguinetti preclude temporary flood takings in this context? | Sanguinetti is limited and not controlling for modern temporary takings. | Sanguinetti supports a permanent/inevitably recurring framing. | Sanguinetti does not control; no categorical prohibition on temporary takings. |
| What factors govern whether a temporary flood constitutes a taking? | Foreseeability, severity, duration, and investment-backed expectations support compensation. | Public works and downstream effects argue against liability; focus on duration alone is insufficient. | Take dynamics depend on foreseeability, severity, duration, and use expectations; evaluate on remand. |
Key Cases Cited
- Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1872) (foundational taking for flooding/upstream invasion)
- United States v. Cress, 243 U.S. 316 (1917) (seasonal flooding can be a taking)
- United States v. Dickinson, 331 U.S. 745 (1947) (reclamation and temporary occupancy can be compensable)
- Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (permanent physical occupation is a taking; temporary invasions require balancing)
- Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002) (duration relevant to regulatory takings analysis)
- First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987) (temporary takings still require compensation when complete taking occurs)
- Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978) (fact-specific inquiry governs takings analysis)
- Sanguinetti v. United States, 264 U.S. 146 (1924) (summarized permanence/causation view for flooding cases)
- United States v. Westinghouse Elec. & Mfg. Co., 339 U.S. 261 (1950) (temporary occupancy during wartime may be compensable)
- Causby v. United States, 328 U.S. 256 (1946) (frequent overflights can amount to a taking)
- Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (economic/physical aspects of land use matter in takings)
- Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (reasonable investment-backed expectations inform takings inquiry)
- Central Eureka Mining Co., 357 U.S. 155 (1958) (fact-specific balancing in takings cases)