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Arkansas Game & Fish Commission v. United States

ELR Citation: 41 ELR 20128
Nos. No. 2009-5121, (Fed. Cir. , 03/30/2011)

The Federal Circuit held that the U.S. Army Corps of Engineers' temporary deviations from the water release rates set forth in an operating plan for the Clearwater Dam that caused increased flooding in Arkansas' Dave Donaldson Black River Wildlife Management Area, which in turn caused excessive timber mortality, did not constitute a taking. The flooding caused excessive timber mortality in the area. The state fish and game commission, which owns the management area, filed a physical takings claim against the United States, claiming that the temporary deviations constituted a taking of a flowage easement, entitling it to compensation. The lower court agreed and awarded the commission a total of $5,778,757.90 in damages. But because the deviations from the operating plan at issue here were only temporary, they cannot constitute a taking. The actions at most created tort liability. Flooding must be a permanent or inevitably recurring condition, rather than an inherently temporary situation, to constitute the taking of a flowage easement. Although the government cannot avoid takings liability by characterizing inevitably recurring events as merely a series of temporary decisions, the Corps' regulatory scheme clearly distinguishes between permanent and temporary release rates. The deviations in question were plainly temporary and the Corps eventually reverted to the permanent plan. Under such circumstances, the releases cannot be characterized as inevitably recurring.