Arkansas Game & Fish Commission v. United States of America

PETITIONER: Arkansas Game & Fish Commission
RESPONDENT: United States
LOCATION: Dave Donaldson Black River Wildlife Management Area

DOCKET NO.: 11-597
DECIDED BY: Roberts Court (2010-2016)
LOWER COURT: United States Court of Appeals for the Federal Circuit

CITATION: 568 US (2012)
GRANTED: Apr 02, 2012
ARGUED: Oct 03, 2012
DECIDED: Dec 04, 2012

Edwin S. Kneedler - Deputy Solicitor General, Department of Justice, for the respondent
James F. Goodhart - f0r the petitioner

Facts of the case

From 1993 through 2000, the United States Army Corps of Engineers imposed a temporary flood regime around the Dave Donaldson Black River Wildlife Management Area. The flood regime caused flooding across the region encompassed by the wildlife management area, which restricted access to and destroyed or degraded thousands of timber trees.

The petitioners brought a case in federal court in an attempt to recover under the takings clause of the Fifth Amendment for the loss of their property resulting from the United State's flood regime. The federal court held that the flood regime constituted a Fifth Amendment taking and that the United States owed petitioners approximately $5.6 million as just compensation.

The government appealed, and the appellate court reversed the lower court's judgment. The appellate court reasoned that the flood regime was a temporary government action, and that only a permanent flooding condition would constitute a taking under the Fifth Amendment. The petitioners appealed the appellate court's decision.


Is the United States liable under the Fifth Amendment's takings clause for physically taking property through temporary flood invasions?

Media for Arkansas Game & Fish Commission v. United States of America

Audio Transcription for Oral Argument - October 03, 2012 in Arkansas Game & Fish Commission v. United States of America

Audio Transcription for Opinion Announcement - December 04, 2012 in Arkansas Game & Fish Commission v. United States of America

John G. Roberts, Jr.:

Justice Ginsburg has our opinion this morning in case 11-597, Arkansas Game and Fish Commission versus The United States.

Ruth Bader Ginsburg:

This case concerns the Takings Clause of the Constitution, which instructs that private property shall not be taken for public use without just compensation.

When is property taken for public use?

That question arises in the case we today resolve.

The Army Corps of Engineer operates a Dam on the Black River, upstream from a Wildlife Management Area owned and operated by the Arkansas Game and Fish Commission.

The management area comprises 23,000 acres of hardwood forest.

Between 1993 and 2000, the Corps operated the Dam in a manner that deviated from historical practice.

The Corps did so in order to accommodate the interest of farmers.

The Arkansas Commission alleged that these deviations, beneficial, as they may have been to farmers, lead to unprecedented levels of flooding on its forest domain over a six-year period.

The cumulative effect of the recurrent flooding, the Commission stated, damaged or destroyed more than 18 million board feet of timber and altered the character of the terrain.

After conducting a trial, the Court of Federal Claims ruled for the Commission, holding that the Corps' actions qualified as a taking of property, impermissible without just compensation.

The Court of Appeals for the Federal Circuit reversed.

As a rule, the Appellate Court noted, government actions need not be permanent to count as a taking of property, but government induced flooding, the Federal Circuit held, is an exception to the general rule and must be permanent or inevitably recurring to rank as a taking of property.

We reversed the Federal Circuit's judgment.

Government induced flooding, we hold, even when finite in duration, gains no automatic exemption from Takings Clause inspection.

We have long held that a taking may occur when government action causes flooding of real property.

We have also held that government acquisition or invasion of property can be a taking, even when temporary in nature.

These settled holdings lead us to conclude a government induced flooding of limited duration but severe impact can amount to a taking of property, warranting just compensation.

In reaching the opposite conclusion, the Federal Circuit relied on United States against Sanguinetti, a 1924 decision in which this Court held that no taking occurred when a government constructed canal overflowed onto private land.

Language in the Court's opinion accounts for the Federal Circuit's position.

But the dispositive holding in Sanguinetti, was simply this, “The property owner failed to prove that the government's construction of the canal in fact caused the flooding.”

Read in light of that no-causation holding, Sanguinetti does not establish the temporary flooding under any and all circumstances escapes assessment under the Takings Clause.

Removing temporary flooding from Taking Clause inspection would be out of sync with our recognition that as a rule, temporary takings maybe compensable.

Why should Courts differentiate flooding from the myriad other instances of government occupation or invasion of property?

Given no persuasive reason to treat flooding as a unique category, we reject the temporary flooding exception on which the Federal Circuit grounded its decision.

We, in no way, suggest that all floodings caused by government are compensable.

Courts must assess the relevant facts and circumstances in each case to determine whether what the government has done amounts to a taking.

As our decisions in this area of counsel, Courts should consider the duration of the interference, whether the invasion was foreseeable when the government acted, the severity of the interference, and the degree to which it upsets the property owner's reasonable expectations regarding the lands used.

The Federal Circuit did not engage in these case-specific inquiries, nor did it consider arguments about damage to downstream property or the relevance of state law, matters raised for the first time in this Court and therefore, outside our review province.

The Court's opinion remanding the case to the Federal Circuit is unanimous.