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Arkansas Game and Fish Comm'n v. United States, No. 11-597 (Dec. 4, 2012)

Arkansas Game and Fish Comm'n v. United States, No. 11-597 (Dec. 4, 2012)

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(Slip Opinion)
OCTOBER TERM, 2012Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has beenprepared by the Reporter of Decisions for the convenience of the reader.See
United States
 Detroit Timber & Lumber Co.,
200 U. S. 321, 337.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FORTHE FEDERAL CIRCUITNo. 11–597. Argued October 3, 2012—Decided December 4, 2012Petitioner, Arkansas Game and Fish Commission (Commission), ownsand manages the Dave Donaldson Black River Wildlife Management Area (Management Area or Area), which comprises 23,000 acresalong the Black River that are forested with multiple hardwood oakspecies and serve as a venue for recreation and hunting. In 1948, theU. S. Army Corps of Engineers (Corps) constructed the ClearwaterDam (Dam) upstream from the Management Area and adopted aplan known as the Water Control Manual (Manual), which sets sea-sonally varying rates for the release of water from the Dam. Periodi-cally from 1993 until 2000, the Corps, at the request of farmers, au-thorized deviations from the Manual that extended flooding into theManagement Area’s peak timber growing season. The Commissionobjected to the deviations on the ground that they adversely impactedthe Management Area, and opposed the Corps’ proposal to make thetemporary deviations part of the Manual’s permanent water-releaseplan. After testing the effect of the deviations, the Corps abandonedthe proposed Manual revision and ceased its temporary deviations.The Commission sued the United States, alleging that the tempo-rary deviations constituted a taking of property that entitled theCommission to compensation. The Commission maintained that thedeviations caused sustained flooding during tree-growing season, andthat the cumulative impact of the flooding caused the destruction of timber in the Area and a substantial change in the character of theterrain, necessitating costly reclamation measures. The Court of Federal Claims’ judgment in favor of the Commission was reversedby the Federal Circuit. The Court of Appeals acknowledged thattemporary government action may give rise to a takings claim if 
UNITED STATESSyllabuspermanent action of the same character would constitute a taking. Itheld, however, that government-induced flooding can give rise to ataking claim only if the flooding is “permanent or inevitably recur-ring.” The Federal Circuit understood this conclusion to be dictatedby
United States
, 264 U. S. 146, 150, and
United States
, 243 U. S. 316, 328.
: Government-induced flooding temporary in duration gains noautomatic exemption from Takings Clause inspection. Pp. 6–15.(a) No magic formula enables a court to judge, in every case,whether a given government interference with property is a taking.This Court has drawn some bright lines, but in the main, takingsclaims turn on situation-specific factual inquiries. See
 Penn CentralTransp. Co.
New York City
, 438 U. S. 104, 124. As to the question whether temporary flooding can ever give rise toa takings claim, this Court has ruled that government-induced flood-ing,
Green Bay Co.
, 13 Wall. 166, and seasonally recur-ring flooding,
, 243 U. S., at 328, can constitute takings. TheCourt has also ruled that takings temporary in duration can be com-pensable.
E.g., United States
, 328 U. S. 256, 266. ThisCourt’s precedent thus indicates that government-induced flooding of limited duration may be compensable. None of the Court’s decisionsauthorizes a blanket temporary-flooding exception to the Court’s Tak-ings Clause jurisprudence, and the Court declines to create such anexception in this case. Pp. 6–9.(b) In advocating a temporary-flooding exception, the Governmentrelies primarily on
, 264 U. S. 146, which held that notaking occurred when a government-constructed canal overflowed on-to the claimant’s land. In its opinion, the Court summarized priorflooding cases as standing for the proposition that “in order to createan enforceable liability against the Government, it is, at least, neces-sary that the overflow be the direct result of the structure, and con-stitute an actual, permanent invasion of the land.”
at 149. TheGovernment urges the Court to extract from the quoted words a de-finitive rule that there can be no temporary taking caused by floods.But the Court does not read the passing reference to permanence in
as having done so much work.
was decidedin 1924, well before the World War II-era cases and
First EnglishEvangelical Lutheran Church of Glendale
County of Los Angeles
,482 U. S. 304, in which the Court first homed in on the matter of compensation for temporary takings. There is no suggestion in
San- guinetti
that flooding cases should be set apart from the mine run of takings claims.The Court thus finds no solid grounding in precedent for settingflooding apart from other government intrusions on property. And
3Cite as: 568 U. S. ____ (2012)Syllabusthe Government has presented no other persuasive reason to do so.Its primary argument is that reversing the Federal Circuit’s decisionrisks disrupting public works dedicated to flood control. While thepublic interests here are important, they are not categorically differ-ent from the interests at stake in myriad other Takings Clause casesin which this Court has rejected similar arguments when deployed tourge blanket exemptions from the Fifth Amendment’s instruction.The Government argues in the alternative that damage to down-stream property, however foreseeable, is collateral or incidental; it isnot aimed at any particular landowner and therefore is not compen-sable under the Takings Clause. The Court expresses no opinion onthis claim, which was first tendered at oral argument and not airedin the courts below. For the same reason, the Court declines to ad-dress the bearing, if any, of Arkansas water-rights law on this case.Pp. 9–13.(c) When regulation or temporary physical invasion by governmentinterferes with private property, time is a factor in determining theexistence
vel non
of a compensable taking. See,
e.g., Loretto
Tele- prompter Manhattan CATV Corp.
, 458 U. S. 419, 435, n. 12. Also rel-evant to the takings inquiry is the degree to which the invasion is in-tended or is the foreseeable result of authorized government action.See,
e.g., John Horstmann Co.
United States
, 257 U. S. 138, 146.So, too, are the character of the land at issue and the owner’s “rea-sonable investment-backed expectations” regarding the land’s use,
Rhode Island
, 533 U. S. 606, 618, as well as the severityof the interference, see,
e.g., Penn Central
, 438 U. S., at 130–131. Inconcluding that the flooding was foreseeable in this case, the Court of Federal Claims noted the Commission’s repeated complaints to theCorps about the destructive impact of the successive planned devia-tions and determined that the interference with the Commission’sproperty was severe. The Government, however, challenged severalof the trial court’s factfindings, including those relating to causation,foreseeability, substantiality, and the amount of damages. Becausethe Federal Circuit rested its decision entirely on the temporary du-ration of the flooding, it did not address those challenges, which re-main open for consideration on remand. Pp. 14–15.637 F. 3d 1366, reversed and remanded.G
, J., delivered the opinion of the Court, in which all otherMembers joined, except K 
, J., who took no part in the considera-tion or decision of the case.

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