Repeated Seasonal Flooding Of Forest Land Authorized By Government May Qualify As A Taking of Property

The U.S. Army Corps of Engineers authorized repeated seasonal flooding that damaged trees on forest land owned by the Arkansas Game and Fish Commission.  The question before the United States Supreme Court was “whether a taking may occur, within the meaning of the Takings Clause, when government-induced flood invasions, although repetitive, are temporary.”  The Court held recurrent floodings, even if they are temporary in nature, are not categorically exempt from liability under the Takings Clause.  (Arkansas Game and Fish Commission v. United States (133 S.Ct. 511, U.S., December 4, 2012)).


The Arkansas Game and Fish Commission (“Commission”) owns 23,000 acres of land along the banks of the Black River. This area, known as the Dave Donaldson Black River Wildlife Management Area (“Management Area”), contains multiple hardwood timber species.  These trees are essential to the Management Area’s character because they are a habitat for migratory birds, and they provide a venue for recreation and hunting.  The Commission operates the Management Area as a hunting and wildlife preserve and conducts regular harvests for forest-management purposes. 

The Clearwater Dam (“Dam”) is located 115 miles upstream from the Management Area.  The U.S. Army Corps of Engineers (“Corps”) constructed the Dam and adopted a Water Control Manual to govern the rates at which water would be released.  In response to requests from farmers, the Corps approved a plan deviation pursuant to which the Corps released water from the Dam at a slower rate than usual from September through December 1993.  The result was a longer harvest time for farmers, but it also caused more water than usual to accumulate behind the Dam in Clearwater Lake.  To counter the accumulation, “the Corps extended the period in which a high amount of water would be released.”  Commission claims “this extension yielded downstream flooding in the Management Area, above historical norms, during the tree-growing season, which runs from April to October.”  Had the Corps released the water more rapidly in the fall, the result “would have been short-term waves of flooding which would have receded quickly.”  The lower rate of release in the fall extended the period of flooding into the following spring and summer of 1994.  Although farmers benefited from the deviation in the release of water, the flooding interfered with the tree-growing season in the Management Area.

The Corps similarly deviated from the Water Control Manual each year from 1994 through 2000.  The Commission objected to the temporary deviations and opposed a permanent revision of the Water Control Manual.  The Corps ceased the temporary deviations in 2001 and abandoned a proposal to permanently revise the Water Control Manual.

The Commission filed a lawsuit in 2005 against the United States asserting “that the temporary deviations from the Manual constituted a taking of property that entitled the Commission to compensation.”  It asserted the deviation caused sustained flooding of the Commission’s land during tree-growing season and that the cumulative impact of the flooding destroyed timber in the Management Area and substantially changed the character of the terrain such that costly reclamation measures are needed.  The Court of Federal Claims ruled in favor of the Commission.  The United States Court of Appeals for the Federal Circuit reversed the decision of the Court of Federal Claims.  The Court of Appeals concluded that “[g]overnment-induced flooding can give rise to a taking claim . . . only if the flooding is ‘permanent or inevitably recurring.’”

Supreme Court Decision

The Supreme Court reversed the decision of the Court of Appeals.  The Supreme Court framed the question before it as “whether a taking may occur, within the meaning of the Takings Clause, when government-induced flood invasions, although repetitive, are temporary.”  The Court held that a taking may occur under such circumstances. 

The Takings Clause of the U.S. Constitution is “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”  The Court previously “recognized that seasonally recurring flooding could constitute a taking” and “that takings temporary in duration can be compensable.”  Government action does not have to be permanent before it can qualify as a taking.

The Court concluded, “Because government-induced flooding can constitute a taking of property, and because a taking need not be permanent to be compensable, our precedent indicates that government-induced flooding of limited duration may be compensable.”  It noted that none of its decisions authorize “a blanket temporary-flooding exception to our Takings Clause jurisprudence” and the Court declined to create an exception in this case.  The Court also declined to address the Corps’ argument regarding the “upstream/downstream distinction” or the impact of Arkansas water-rights law on this case.  Instead, the Court stated that it ruled “simply and only, that government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.” 


If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

William T. Chisum | 916.321.4500

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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