Arkansas Game and Fish Commission v. United States

LII note: The U.S. Supreme Court has now decided Arkansas Game and Fish Commission v. United States.


Under the Fifth Amendment, does temporary, government-induced flooding require compensation to the owner of the flooded property?

Oral argument: 
October 3, 2012

Petitioner, the Arkansas Game and Fish Commission (the “Commission”) sued Respondent, the United States, for a violation of the Takings Clause of the Fifth Amendment, which compels the government to compensate parties when the government physically seizes property. Specifically, the Commission argues that the United States Army Corps of Engineers (the “Corps”) permanently destroyed trees in a bottomland hardwood forest in Arkansas by intermittently flooding the forest for six years. The United States asserts that the actions of the Corps did not constitute a taking because the Corps did not oust the Commission of possession of the forest, and only a continuous invasion qualifies as a physical taking. The Supreme Court’s decision in this case will determine whether a temporary invasion is a taking which will affect the meaning of the Takings Clause as it is used in future disputes concerning the destruction of property.

Questions as Framed for the Court by the Parties 

Petitioner Arkansas Game & Fish Commission, a constitutional entity of the State of Arkansas, sought just compensation from the United States under the Takings Clause of the Fifth Amendment for physically taking its bottomland hardwood timber through six consecutive years of protested flooding during the sensitive growing season. The Court of Federal Claims awarded $5.7 million, finding that the Army Corps of Engineers' actions foreseeably destroyed and degraded more than 18 million board feet of timber, left habitat unable to regenerate, and preempted Petitioner's use and enjoyment.

The Federal Circuit, with its unique jurisdiction over takings claims, reversed the trial judgment on a single point of law. Contrary to this Court's precedent, a sharply divided 2-1 panel ruled that the United States did not inflict a taking because its actions were not permanent and the flooding eventually stopped. The Federal Circuit denied rehearing en banc in a fractured 7-4 vote.

The question presented is: Whether government actions that impose recurring flood invasions must continue permanently to take property within the meaning of the Takings Clause.


The Arkansas Game and Fish Commission (“the Commission”) is an agency that works to regulate and preserve Wildlife Management Areas in Arkansas.   One of the areas that the Commission manages (the “Management Area”) is a bottomland hardwood forest in the Upper Mississippi Alluvial Valley, home to diverse wildlife and hardwood timber species.   The Black River runs through the Management Area. One way that the Commission regulates the Management Area is by harvesting timber in the area and then planting new trees.   The Commission also controls the flooding of multiple reservoirs in the Management Area to improve the habitat for migratory waterfowl.     

On March 18, 2005, the Commission filed a lawsuit in the Court of Federal Claims against the United States claiming that from 1993 through 2000, the United States effectuated a taking of the Commission’s property and failed to provide compensation.   The Commission argued that during those years, the United States Army Corps of Engineers (“the Corps”), deviated from the Corps’ 1953 water control plan for the Clear Water Dam, which regulates the flow of the Black River.  The Commission claims that the deviations caused increased flooding in the Management Area, which devastated the timber in the region.  The Corps deviated from the 1953 water control plan to help farmers near the Management Area.   

In December 2008, the Court of Federal Claims conducted a hearing concerning the Commission’s lawsuit.   At the hearing, the United States argued that the flooding in the Management Area was temporary and therefore did not constitute a taking. The Court of Federal Claims rejected the United States’ argument and awarded the Commission $5.5 million for the damage resulting from the flooding and $176,428.34 to regenerate the Management Area. The United States appealed to the Court of Appeals for the Federal Circuit  (“Court of Appeals”), arguing that a taking had not occurred and the Commission cross-appealed, requesting more funds for regeneration. The Court of Appeals ruled in favor of the United States and then denied the Commission’s petition for a rehearing.     On April 2, 2012, the Supreme Court of the United States granted the Commission certiorari to consider whether flooding has to be permanent to constitute a taking under the Takings Clause of the Fifth Amendment.  On August 16, 2012, the Commission rejected a $13 million settlement offer from the United States because the United States refused to agree that the Corps would not increase the flooding in the Management Area again. 


Temporality as a Decisive Factor in Takings Clause Claims

The Commission argues that temporality should not be the decisive factor in deciding a physical takings claim. The Commission strongly contends that the determination of a takings claim involves a balancing test that examines all the circumstances of a physical taking when considering whether a violation of the Fifth Amendment has occurred. The Commission contends that such a balancing test should consider whether the property owner opposed the government’s invasion to no avail. Having the duration of a government invasion be dispositive creates a poor legal test because, the Commission argues, all takings are temporary in the sense that the government can always decide to cease its actions at whatever time it desires. The Commission contends that to base the Takings Clause analysis solely on temporality leads to problematic results because such a legal test elevates form over substance in permitting the government to decide when its actions warrant compensation. As 33 U.S.C. § 702(c) gives the government immunity in torts for damages caused by flood control projects, making temporality a dispositive factor in a physical taking determination will further undermine the Takings Clause and the protection it affords to property owners. 

Furthermore, the Petitioner argues that even if temporality can be a decisive factor in a takings claim, the Takings Clause of the Fifth Amendment requires that just compensation be provided for any takings regardless of the duration of the invasion.  The Commission posits that previous Supreme Court cases have interpreted temporary takings with denial of all use of property no differently from permanent takings, which require compensation.  The Commission further cites to previous court cases to support the argument that even when government invasion of a plaintiff’s property spans only one day, a physical taking has occurred if the intrusion resulted in the destruction of the owner’s interest or complete denial of use during the taking period. Moreover, the Commission contends that temporary invasions of property still constitute the government putting private property to public use, and thus, the government should be held liable for a violation of the Takings Clause. 

In response to the Commission’s argument that Takings Clause claims must employ a balancing test, the Corps suggests that previous cases allow for a single factor—such as temporality or a property owner’s expectation of injury—to be dispositive. The Corps argues that previous cases regarding physical takings have been resolved without balancing the temporality of the taking with other factors.  Furthermore, the Corps states that temporary takings have never been subject to a multi-factor test because such temporary invasions have never been deemed to be violations of the Fifth Amendment.  Also, the Commission adds that the Supreme Court has often substituted single-factor tests for takings claims that normally get resolved through multi-factor tests. 

In response to the Commission’s contention that a temporary flooding can be compensable, the Corps contends that, according to precedent, as long as there is no ouster of possession, and any invasion of a landowner’s property was for a short period of time, then no physical taking has occurred.  Thus, the Corps argues that only a continuous or inevitably recurring inundation that materially differs from a pre-existing burden on the land qualifies as a physical taking. Moreover, the Corps insists that the government invasion of the Black River bottomland hardwood forest did not amount to a taking because, according to Loretto v. Teleprompter Manhattan CATV Corp., a taking is only found in situations where government-induced flooding causes a permanent physical occupation. The government-induced flooding of the Black River bottomland hardwood forest was not permanent because it was an irregular activity that occurred at different times during each of the years in which flooding took place. 

Foreseeability of Harm and Expectations of the Property Owner

Adding to the argument that temporary takings are violations of the Fifth Amendment, the Commission maintains that, even if government-induced inundations are limited in time, such inundations are compensable if the repeated flooding is an unavoidable, direct consequence of, and causally linked, to the government’s actions. In essence, the Commission argues that the determination of a taking is not dependent on the government’s intent but rather on the foreseeability of harm caused by the government’s actions. Indeed, the Commission states that the test for a physical taking should rely on the usual Takings Clause analysis that, according to Ridge Line, Inc. v. United States, looks at the foreseeability of harm and the nature and magnitude of the government invasion. Proceeding along these lines, the Commission contends that when a foreseeable invasion of property amounts to an intrusion and the intrusion is substantial, it constitutes as a taking.  

By contrast, the Corps argues that the Commission could have anticipated the kind of flooding that occurred from the actions of the Corps because the land was always subject to flooding even prior to the construction of the dam. Also, the Corps states that the Commission has no right to expect only floods of particular volumes at particular times, especially due to the fact that the Clearwater Lake Water Control Manual specified that deviations from normal floods would occur. Furthermore, the Corps sets forth that the Commission suffered indirect and consequential damages because the floods were not directed at the Commission’s lands. Additionally, the water that floods the Commission’s property comes from natural resources, and the floods are not specific to the Commissioner’s parcel of land because they occur over 100 miles upriver from the Commissioner’s lands. 

Nature and Magnitude of the Injury

Attempting to refute the Corps’ argument that the government-induced flooding was not directed at the Management Area, the Commission believes that the determination of the takings claim should focus more on the damage that has been done to the bottomland hardwood forest rather than whether the Corps intended to flood the Commission’s property. Although the government invasion may have been temporary, the Commission contends that the damage caused by the government was permanent. Moreover, the Commission argues that as demonstrated by Loretto, such injuries are not obviated by the fact that the government invasion produces benefits and is of minimal economic detriment. The Commission further argues that, as interpreted in previous cases, the Takings Clause is designed to prevent the government from putting burdens on selected individuals or groups when such burdens should be spread across the general public.  Even if the value of a property remains more or less the same after government invasion, the mere occurrence of the invasion is sufficient to warrant just compensation.  After all, the Commission states, the Takings Clause is meant to protect property owners and not the government. 

In response, the Corps states that since the Commission’s property did not lose all of its value, the takings claim is baseless because previous court cases have focused on the permanence of the flood and whether the property was completely destroyed.  Moreover, the Corps states that experts’ analyses show that there would have been periods of timber inundation even without the government-induced floods. The Corps also contends that it should not be liable for a taking because its floods were more beneficial than harmful to the general public; the floods aim to promote the common good by supplying farmers with water.  Furthermore, the government-induced flooding was implemented to shift benefits and burdens among property owners, so, in this sense, burdens were not borne by any selected individuals or groups.  The Commission finishes its rebuttal by stating that, historically, flood control has been devised to curtail harms caused by forces of nature, and this beneficial purpose precludes flooding from categorization as a taking. 


The Arkansas Game and Fish Commission (“Commission”) argues that temporary flooding is a taking and therefore the United States must provide compensation for destroying timber in the Upper Mississippi Alluvial Valley (“Management Area”).   The United States responds that temporary flooding of this nature does not constitute a taking under the Takings Clause.  The Supreme Court’s decision will affect the meaning and application of the Takings Clause. 

Consequences of a Balancing Test

The Pacific Legal Foundation and others (“PLF”) note that the Supreme Court should not use a balancing test to analyze the Commission’s claims, noting that such characterization would only serve to upend established indicia of a taking.  The National Federation of Independent Business Legal Center and others (“NFIB”) agree, arguing that the Supreme Court should not adopt a balancing test because it would force aggrieved property owners to calmly weigh factors in situations where such decision making is simply not feasible.   Wolfsen Land & Cattle Co., along with others, claim that such a test will disproportionately harm farmers because they depend upon compensation from the government to recover from the government induced flood damage to soil and crops.    The NFIB points out that if farmers do not receive compensation for the effects of flooding, then consumers who get their food supply from farms will also be negatively affected.    Furthermore, the NFIB argues that a balancing test could hurt forest landowners because the owners will have difficulty maintaining and regenerating the forests if the government takes forestland without compensation.  Similarly, small business owners who are financially unable to pay to repair damages to their properties resulting from a taking by the government need a bright-line rule to know when to file a lawsuit.    

Effect of Government Action with or without Compensation

The NFIB contends that the Takings Clause of the Fifth Amendment (“Takings Clause”) means that the government can only take private property if it provides compensation, whether or not the taking is temporary, because of the bedrock principle that property owners should not bear “public burdens,” even temporary ones.    The PLF and the Washington Legal Foundation (“WLF”) are concerned that, if the Supreme Court rules in favor if the United States, constitutional private property rights will erode because the government will simply be able to categorize a taking as temporary to avoid paying compensation.      The PLF also points out that, should the Supreme Court consider this temporary invasion a tort, the government could escape liability so long as the taking was unintentional, thereby subjecting aggrieved landowners to unnecessary financial burdens.  

The United States asserts that temporary flooding is more beneficial than harmful to the public and, to effect such benefits, the government cannot be burdened by takings analysis each time it attempts to act in the public good.   The U.S. Army Corps of Engineers (“Corps”) notes that it has historically served an important function by protecting and controlling the country’s water resources, a role that would be negatively impacted by a finding of a taking here.    The United States further claims that balancing is necessary in this type of scenario in pointing out that the degree of damage must reach a certain threshold before any claim should be considered.  The International Municipal Lawyers Association, joined by others, points to important actions by local governments and notes that an expansive Takings Clause, as advocated by the Commission here, would place undue financial strain and impose inertia on government functions. 


In deciding this case, the Supreme Court will establish whether temporary invasions of property constitute a taking under the Fifth Amendment of the United States Constitution. The Commission argues that a temporary invasion is a taking because the Corps’ actions destroyed the trees in the bottomland hardwood forest, and even though the flooding may have been temporary, the destruction caused by the flooding was permanent. The United States contends that because the invasion was temporary, and as the Corps did not oust the Commission from the forest, the flooding of the forest cannot constitute a taking. The United States also argues that the actions of the Corps were overall beneficial to the public. The Supreme Court’s decision in this case will influence the meaning of the Takings Clause and how courts analyze a takings claim to determine if a taking has occurred. 

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