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Arkansas Game & Fish Commission v. United States

ELR Citation: 43 ELR 20260
Nos. 2009-5121, 2010-5029, (Fed. Cir., 12/03/2013)

The Federal Circuit, on remand from the U.S. Supreme Court, 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, gave rise to a temporary taking. The Supreme Court held that government-induced flooding can constitute a taking even if it is temporary in duration. The Court also explained that in the case of temporary flooding, the question whether a taking has occurred does not turn solely on the duration of the invasion that caused the injury in question. Here, the evidence supports the trial court's findings that the deviations caused a substantial increase in the periods of growing-season flooding in the Management Area and that the flooding caused widespread damage to the trees there. In addition, the trial court found that the impact of the deviations was foreseeable from the outset, and that the Corps was put on notice of the impact the deviations were having. The trial court also found that the increased length of the periods of growing-season flooding made the intrusion sufficiently severe to support a takings claim. The court, therefore, affirmed the lower court's ruling that a temporary taking occurred.