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Arkansas Game & Fish Commission v. United States

ELR Citation: 42 ELR 20247
Nos. 11-597, (U.S., 12/04/2012)

The U.S. Supreme Court held that government-induced flooding that is temporary in duration may constitute a takings and is not automatically exempt from Takings Clause inspection. The case arose after the U.S. Army Corps of Engineers extended flooding from a dam into the Dave Donaldson Black River Wildlife Management Area’s peak timber growing season. The Arkansas Fish and Wildlife Commission, which owns and manages the management area, filed suit, arguing that the temporary deviations constituted a taking of property that entitled it to compensation. The Commission maintained that the deviations caused sustained flooding during tree-growing season, and that the cumulative impact of the flooding caused the destruction of timber in the area and a substantial change in the character of the terrain, necessitating costly reclamation measures. The trial court held in favor of the Commission, but the appellate court reversed, holding that government-induced flooding can give rise to a takings claim only if the flooding is permanent or inevitably recurring. The Supreme Court disagreed. None of the Court’s decisions authorizes a blanket temporary-flooding exception to the Court’s Takings Clause jurisprudence, and the Court found no solid grounding in precedent for setting flooding apart from other government intrusions on property. Rather, when a regulation or temporary physical invasion by the government interferes with private property, time is a factor in determining the existence of a compensable takings, as well as the degree to which the invasion is intended or is the foreseeable result of authorized government action, the character of the land at issue, the owner's reasonable investment-backed expectations regarding the land's use, and the severity of the interference. The case was therefore reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which all other Members joined, except Kagan, J., who took no part in the consideration or decision of the case.