Arkansas Game & Fish Commission v. United States, 637 F.3d 1366

The Arkansas Game and Fish Commission owns 23,000 acres of the Dave Donaldson Black River Wildlife Management Area, used as a wildlife preserve and timber resource.
Clearwater Dam upstream (upstream of the Management Area) releases are governed by a Water Control Manual adopted in 1953 to manage flood flows.
From 1993 to 2000, the Corps approved temporary deviations from the 1953 plan, altering release rates to accommodate various interests.
A White River Group and later a Black River Group both proposed interim or permanent deviations; none culminated in a permanent manual change.
The Commission alleged that the temporary deviations caused prolonged flooding during the tree-growing season, causing timber mortality and regeneration costs.
The Claims Court found a temporary flowage easement and awarded damages; the Federal Circuit reversed, holding no taking occurred.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did deviations from the 1953 plan constitute a taking of a flowage easement?	Arkansas argued temporary deviations caused an inevitable flowage easement.	United States contends deviations were temporary and not inevitably recurring.	No taking; deviations were temporary, not inevitably recurring.
Were the flooding and timber damages substantial enough to support a taking?	Commission contends flooding was substantial and caused timber loss.	US argues damages were insufficient or not the direct, predictable result of the action.	Not reached; temporary nature defeats taking theory.
Was the flooding the inevitable result of the government action or merely a tort?	Flooding was the predictable consequence of deviations and thus a taking.	Flooding was a temporary, non-inevitable consequence; tort at most.	Temporary deviations cannot be inevitably recurring flowage easement.
Should a tort-based approach apply where flooding was temporary but injurious?	Injury qualifies as taking due to permanent timber damage.	Injury is tortious, not a taking, absent permanent invasion.	Torts, not takings, given temporary deviations.
Did the prosecution need to decide on damages given the temporary nature of deviations?	Damages for timber loss and regeneration were proper.	Damages inappropriate absent a taking.	Damages reversed as no taking occurred.

United States v. Cress, 243 U.S. 316 (1917) ( permanent or inevitably recurring flooding supports a taking)
United States v. Dickinson, 331 U.S. 745 (1947) ( taking where land permanently affected by dam-induced rise)
Sanguinetti v. United States, 264 U.S. 146 (1924) ( distinguishes permanent invasion from mere indirect injury)
Ridge Line, Inc. v. United States, 346 F.3d 1346 (Fed. Cir. 2003) ( intermittent flooding can be a taking if inevitable and permanent)
Barnes v. United States, 538 F.2d 865 (Ct. Claims 1976) ( flooding must be inevitably recurring; early temporality matters)
Fromme v. United States, 412 F.2d 1192 (Ct. Claims 1969) ( temporary conditions cannot yield a taking absent inevitability)
Cooper v. United States, 827 F.2d 762 (Fed. Cir. 1987) ( timber destruction from flooding can support taking where action persisted)
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) ( permanent physical occupation; flood cases discussed in balancing)