United States Court of Appeals
for the Federal Circuit
__________________________
ARKANSAS GAME & FISH COMMISSION,
Plaintiff-Cross Appellant,
v.
UNITED STATES,
Defendant-Appellant.
__________________________
2009-5121, 2010-5029
__________________________
Appeals from the United States Court of Federal
Claims in case no. 05-CV-381, Judge Charles F. Lettow.
___________________________
Decided: March 30, 2011
___________________________
JULIE D. GREATHOUSE, Perkins & Trotter, PLLC, of
Little Rock, Arkansas, argued for plaintiff-cross appel-
lant. With her on the brief were JAMES F. GOODHART and
JOHN P. MARKS, Arkansas Game & Fish Commission, of
Little Rock, Arkansas.
ROBERT J. LUNDMAN, Attorney, Environment & Natu-
ral Resources Division, United States Department of
Justice, of Washington, DC, argued for defendant-
appellant. With him on the brief was IGNACIA S. MORENO,
Assistant Attorney General.
__________________________
ARKANSAS GAME & FISH COMM v. US 2
Before NEWMAN and DYK, Circuit Judges, and WHYTE, *
District Judge.
Opinion for the court filed by Circuit Judge DYK. Dissent-
ing opinion filed by Circuit Judge NEWMAN.
DYK, Circuit Judge.
The Arkansas Game and Fish Commission (“the
Commission”) filed a physical takings claim against the
United States in the Court of Federal Claims (“Claims
Court”), alleging that the United States had taken its
property without just compensation. The Commission
claimed that temporary deviations by the Army Corps of
Engineers (“the Corps”) from an operating plan for Clear-
water Dam during the years 1993 to 2000 caused in-
creased flooding in the Commission’s Dave Donaldson
Black River Wildlife Management Area (“Management
Area”). This flooding, in turn, caused excessive timber
mortality in the Management Area. The Claims Court
concluded that the United States had taken a temporary
flowage easement over the Commission’s property and
awarded a total of $5,778,757.90 in damages. Ark. Game
& Fish Comm’n v. United States, 87 Fed. Cl. 594, 617, 647
(2009). Because we conclude that the Corps’ deviations
did not constitute a taking, we reverse.
BACKGROUND
The Commission owns the Management Area, which
is located in northeast Arkansas and consists of 23,000
acres on both banks of the Black River. The Commission
operates the Management Area as a wildlife and hunting
* Honorable Ronald M. Whyte, District Judge,
United States District Court for the Northern District of
California, sitting by designation.
3 ARKANSAS GAME & FISH COMM v. US
preserve and harvests timber, thereafter reforesting the
harvested areas. The Corps completed construction of the
Clearwater Dam in 1948. The dam is located in southeast
Missouri approximately 115 miles upstream of the Com-
mission’s Management Area. The reservoir created by the
dam is called Clearwater Lake. The primary purpose of
the dam was to provide flood protection.
A
Whenever the Corps constructs a dam, it adopts a wa-
ter control plan reflected in a Water Control Manual.
These water control plans detail release rates, safety
features, and other operating instructions. They are
required by Corps regulation. U.S. Army Corps of Engi-
neers, Eng’r Reg. No. 1110-2-240, at 2 (Oct. 8, 1982)
[hereinafter EM 1110-2-240]. The plans are developed by
regional district commanders “in concert with all basin
interests which are or could be impacted by or have an
influence on project regulation” and then submitted to the
Corps for approval. Id. at 3, 4.
This case concerns release rates from the dam estab-
lished by the plan for Clearwater Dam and deviations
from the planned rates. The purpose of regulating release
rates is to control the flow of the Black River in order to
reduce the adverse effects of flooding in downstream
areas. The dam cannot be operated in a manner that
completely eliminates flooding because water must be
released from the dam, and the released water will, to
some extent, cause flooding. If the release rates are
lower, the height of the flooding is decreased but the
period of flooding is increased. If the release rates are
higher, the height of the flooding is increased but the
period of flooding is decreased. Apparently, agricultural
interests favored a lower release rate even though this
would lead to longer periods of flooding, while the Com-
ARKANSAS GAME & FISH COMM v. US 4
mission and those located near Clearwater Lake preferred
a higher release rate to return the lake to its normal level
more quickly. As will be seen, the claim here is that the
Commission’s property was damaged by the temporary
adoption of a lower release rate during the growing sea-
son, prolonging the release period and damaging trees.
In order to understand the parties’ respective posi-
tions, it is necessary to describe the background of the
1953 plan and the deviations from that plan that are
challenged here. The plan for Clearwater Dam was
developed over a period of several years and was finally
adopted as part of the Clearwater Lake Water Control
Manual in 1953. After the Corps completed construction
of Clearwater Dam in 1948, it experimented with release
levels for five years. Releases were measured by the
maximum height of the water at the Poplar Bluff Gauge
in the Black River, which is downstream of the dam but
upstream of the Management Area. The first maximum
levels at Poplar Bluff during this early period were 12 feet
during agricultural season and 14 feet during non-
growing season. The Corps concluded that “operating
experience” showed these high releases negatively af-
fected too many downstream areas. J.A. 9865. Therefore,
in 1950, the Corps reduced the maximum release levels to
10.5 feet during growing season and 11.5 feet during non-
growing season. After three years during which “no
consistent problems [were] encountered,” the Corps
approved the first Clearwater Lake Water Control Man-
ual in 1953. 1 J.A. 9865. Under the Manual’s “normal
regulation,” releases were regulated so that the water
height at Poplar Bluff did not exceed 10.5 feet during
growing season and 11.5 feet during non-growing season.
1 The Water Control Manual was amended in 1972
and 1995, but not in respects involving the release rates
of water from the dam.
5 ARKANSAS GAME & FISH COMM v. US
The maximum release levels at Poplar Bluff allowed for
the quick release of water during the growing season, so
flooding occurred in short-term waves rather than over
extended periods. The Manual’s normal regulation
somewhat mimicked the natural flooding patterns in the
region. During the 1993–2000 period, the Manual’s
“normal regulation” releases were the same as under the
original 1953 plan.
The Clearwater Lake Manual allowed for deviations
from the “normal regulation” releases for (1) emergencies,
(2) “unplanned minor deviations,” such as for construction
or maintenance, and (3) “planned deviations” requested
for agricultural, recreational, and other purposes. J.A.
9907–08. The deviations in question here fell into the
latter category. According to the Manual, the Corps was
“occasionally requested to deviate from normal regula-
tion.” Id. at 9907. Planned deviations had to be approved
by the Corps’ Southwestern Division, which was required
to consider “flood potential, lake and watershed condi-
tions, possible alternative measures, benefits to be ex-
pected, and probable effects on other authorized and
useful purposes.” Id. As described in the Manual, these
requests were for specific activities that required devia-
tions only for limited periods of time, such as the harvest-
ing of crops, canoe races, and fish spawning. Therefore,
the approved deviations were by their nature temporary.
The temporary deviations here began in 1993, forty
years after the adoption of the Water Control Manual. 2
In 1993, the Corps approved a “planned deviation” from
the Water Control Manual’s approved releases for a three
month period from September 29 to December 15, 1993,
2 It appears that there were deviations in years be-
fore 1993, but none of those is challenged here. Nor,
apparently, were they challenged in the past.
ARKANSAS GAME & FISH COMM v. US 6
lowering the maximum release level to six feet at the
request of agricultural interests that desired slower
releases to “allow[] farmers more time to harvest their
crops.” J.A. 8237–38. No permanent change was made to
the Water Control Manual at that time. But in the same
year, the Corps fostered creation of the White River Ad
Hoc Work Group (“White River Group”) to “recommend
minor changes to the approved regulating plan[s]” for
dams across the White River Basin, which included
Clearwater Dam. Id. at 8242. In other words, the White
River Group was to propose permanent changes to ap-
proved plans, including the Clearwater Lake Water
Control Manual.
The Corps’ regulations provided that water control
plans “will be revised as necessary to conform with chang-
ing requirements resulting from [new] developments.” ER
1110-2-240 at 2. The regulations also required that
“plans will be subject to continuing and progressive study
by personnel in field offices of the Corps.” Id. Substantive
revisions “require[d] public involvement and public meet-
ings,” and the Corps was required to provide a report to
the public at least 30 days before the meeting “ex-
plain[ing] the recommended . . . change . . . explaining the
basis for the recommendation . . . [and providing] a de-
scription of its impacts.” Id. at 4a. Moreover, in making
revisions, the Corps was also required to “comply with
existing Federal regulations,” such as the National Envi-
ronmental Policy Act (“NEPA”). Id. at 2, A-1.
The White River Group included private recreational,
agricultural, navigational, and hydropower interests, as
well as state and federal agencies such as the Commis-
sion. The Commission objected to deviations from the
approved water releases in the 1953 plan that would
lower the release rates because such deviations would
prolong the release period. The lower maximum release
7 ARKANSAS GAME & FISH COMM v. US
rates meant that water would evacuate from Clearwater
Dam more slowly, causing consistent downstream flood-
ing in the Management Area during the tree growing
season. (The tree growing season lasts, on average, from
April 4 to October 11 each year, and the “critical months”
are June, July, and August.) Higher maximum release
rates, on the other hand, would result in short-term
waves of flooding that would quickly recede. The Commis-
sion specifically complained that the lake was 530 feet
deep on April 15, 1994, and that, at the lower maximum
rates, it took sixty days of constant releases for the lake to
reach its targeted summertime level, flooding the Man-
agement Area for most of that two-month period.
In 1994, the White River Group, unable to recommend
permanent revisions to the release plan, proposed a year
“interim operating plan” that called for temporary devia-
tions during an eight month period. J.A. 8244. The Corps
approved “the proposed interim operating plan” as a
deviation from April 1994 through April 1995, allowing
deviations from the normal release rates from April
through November. Id. at 8241. The plan set the maxi-
mum target level at 11.5, instead of 10.5 feet, for the first
two weeks in April and then set the maximum level at 8
feet for the next month and 6 feet from mid-May through
November. In February 1995, when the White River
Group again proved unable to propose a final plan, the
Corps approved an extension of the “interim operating
plan . . . to continue as a deviation” for another 12 months
through April 1996, allowing deviations from April to
November. Id. at 8251. The Corps noted that it would
“monitor the effectiveness of the interim operating plan”
during that period. Id.
In February 1996, the White River Group formed a
subcommittee of solely Black River interests (“the Black
River Group”), including the Commission, to recommend a
ARKANSAS GAME & FISH COMM v. US 8
plan for Clearwater Dam. The Black River Group also
could not reach consensus on a proposed permanent
deviation plan for Clearwater Dam. Instead, the Corps
approved a new “Interim Operating Plan” proposed by the
Black River Group for Clearwater Dam for another 12
months through April 15, 1997, with deviations occurring
April through November. The Corps said it would “con-
tinue to monitor the effectiveness” of both the White River
and Black River “interim operating plans.” Id. at 8254.
The new Black River Group interim plan differed from the
prior interim plan recommended by the White River
Group. It set the release rate at 6 feet in June and at 5
feet from July through November. This interim plan
lapsed in April 1997, and no new interim plan was imme-
diately adopted, leaving the 1953 Manual release rates in
place. The Corps did, however, approve a temporary
planned deviation in accordance with the Manual from
June 3, 1997, to July 5, 1997, to prevent possible flooding
and another temporary planned deviation from June 11,
1998, to November 30, 1998, in response to a request from
agricultural interests.
The White River Group disbanded in 1997 when it
recommended a final plan for the rest of the White River
Basin, but the Black River Group continued to work on a
plan for Clearwater Dam. The Black River Group finally
recommended a proposed plan on September 15, 1998,
and that plan was approved as a temporary deviation for
13 months from December 1, 1998, to December 31, 1999,
with deviations occurring during the entire 13 month
period. This proposed plan also differed from the interim
plans approved in prior years, setting the maximum level
at 4 feet from mid-May through November but increasing
the maximum level if the lake behind Clearwater Dam
filled to a certain volume.
9 ARKANSAS GAME & FISH COMM v. US
In 1999, the Corps began the process of adopting a re-
vised permanent release plan for Clearwater Dam. In
keeping with federal regulations, the Corps prepared an
Environmental Assessment (“EA”). An EA is a brief
report, without detailed descriptions or data, indicating
possible environmental consequences that can help de-
termine whether a more extensive Environmental Impact
Statement (“EIS”) is necessary pursuant to NEPA. An
EIS is necessary where there is a possibility of significant
environmental impacts. In comments made on the draft
EA, the Commission objected to the proposed changes to
the Water Control Manual. The Corps agreed that the
proposed revision would require an EIS under NEPA.
Meanwhile, the Corps approved the continuation of
the 1999 deviations for 11 months through December 1,
2000, as “a temporary Water Control Plan.” J.A. 8294. In
May 2000 and March 2001, the Corps and Commission
together conducted tests to determine the environmental
impact on the Management Area when certain levels of
water were released from Clearwater Dam. In doing so,
the Corps confirmed that tree roots would be flooded
under the proposed plan, which could potentially damage
or destroy the trees. Therefore, the Corps declined to
further pursue a permanent revision to the 1953 Water
Control Manual and returned to the releases set out in
the original Manual.
In sum, after approving a planned deviation in 1993,
the Corps approved three different interim deviation
plans with different release rates during the period from
1994–2000. During some portions of that period no
interim plan was in place. When temporary plans were in
place, for all but two years (1999 and 2000), the release
rates deviated from the 1953 plan during only part of the
year, usually April through November. During this entire
1994–2000 period, efforts were made to propose a perma-
ARKANSAS GAME & FISH COMM v. US 10
nent amendment to the 1953 plan, but no permanent
revision to the plan was ever adopted. The effort was
finally abandoned in 2001, and the un-amended 1953 plan
continued to govern. The chart below summarizes the
details of these temporary deviation plans. 3
Plan Date of Deviations Normal
Plan (and Date) Regulation
1993 Deviation 9/29/93 - 6 ft (9/29/93 10.5 ft or
Request Under 12/15/93 - 12/15/93) 11.5 ft 4
Original Plan
1994 White 4/1/94 - 11.5 ft 10.5 ft
River Group 4/15/95 (4/1/94 -
Interim Plan 4/14/94)
8 ft (4/15/94 10.5 ft
- 5/14/94)
6 ft (5/15/94 10.5ft or
- 11/30/94) 11.5 ft
3 In the chart, the deviations are described by the
targeted water height levels at Poplar Bluff Gauge. Most
of the deviation plans also included alternative target
levels if Clearwater Lake, located behind the dam,
reached certain elevations. For example, under the 1994
interim plan, the target level at Poplar Bluff Gauge from
May 15 to November 30 was six feet unless Clearwater
Lake became 70 percent full, in which case more water
would be released to a target level of 8 feet at Poplar
Bluff. For purposes of simplification, these alternative
target levels have not been included in the chart.
4 The normal regulation is 10.5 feet during agricul-
tural season and 11.5 feet during non-growing season.
11 ARKANSAS GAME & FISH COMM v. US
11.5 ft 10.5 ft
(4/1/95 -
4/15/95)
White River 4/15/95 - 8 ft (4/15/95 10.5 ft
Group Interim 4/15/96 - 5/14/95
Plan Extension
6 ft (5/15/95 10.5 ft or
- 11/30/95) 11.5 ft
11.5 ft 10.5 ft
(4/1/96 -
4/15/96)
1996 Black 4/15/96 - 11.5 ft 10.5 ft
River Group 4/15/97 (4/15/96 -
Interim Plan 5/20/96)
6 ft (6/1/96 - 10.5 ft
6/30/96)
5 ft (7/1/96 - 10.5 ft
11/30/96)
1998 Deviation 6/11/98 - 5 ft (6/11/98 10.5 ft or
Request Under 11/30/98 - 11/30/98) 11.5 ft
Original Plan
1998 Black 12/1/98 - 11.5 ft 10.5 ft or
River Group 12/31/99 (12/1/98 - 11.5 ft
Proposed Plan 5/14/99)
4 ft (5/15/99 10.5 ft or
- 11/30/99) 11.5 ft
ARKANSAS GAME & FISH COMM v. US 12
Black River 1/1/00 - 11.5 ft 10.5 ft or
Group Pro- 12/1/00 (1/1/00 - 11.5 ft
posed Plan 5/14/00)
Extension
4 ft (5/15/00 10.5 ft or
- 11/30/00) 11.5 ft
B
In 2005, the Commission brought suit against the
United States under the Tucker Act, 28 U.S.C. § 1491,
claiming that the temporary release rate deviations
during the 1993–2000 period constituted a taking of a
flowage easement entitling the Commission to compensa-
tion. The Commission alleged that the deviations caused
repeated increased flooding and damaged and destroyed
timber in the Management Area. The United States
denied that a taking had occurred. The United States
argued that any increased flooding was only temporary
and constituted, if anything, a tort rather than a taking.
The United States also argued that the damage was not
substantial enough to constitute a taking and that the
effects in any event were not predictable, again defeating
a takings claim.
A hearing was held before the Claims Court from De-
cember 1, 2008, to December 12, 2008, in which eighteen
witnesses testified. In addition to addressing the nature
of the deviations from the 1953 plan (described above),
the hearing addressed two other issues: the substantiality
of the flooding and the predictability of the alleged dam-
age.
With respect to the substantiality of the flooding, the
Commission’s testimony showed that the Management
Area flooded regularly during the 1993–2000 period,
13 ARKANSAS GAME & FISH COMM v. US
including during the tree growing season. The presence of
standing water or saturated soil during tree growing
season can weaken the roots of the multiple species of oak
trees located in the Management Area, which can also
render the oaks more susceptible to drought conditions.
The flooding was not consistent from year to year.
The parties’ experts disagreed as to the amount of in-
creased flooding. Two experts for the Commission, Drs.
Heitmeyer and Overton, testified about the extent of the
increased flooding. Both used the height of the Corning
water gauge along the Black River (downstream of the
Poplar Bluff gauge) as a proxy for when flooding occurred,
observing that flooding occurred when the Corning gauge
reading was over 5 feet. Dr. Heitmeyer reported that the
gauge exceeded 5 feet (the level at which flooding oc-
curred) during the tree growing season about 29 more
days per year from 1993–1999 than from 1949–1992. Dr.
Overton compared the gauge readings from 1981–1992 to
the readings from 1993–1999. He explained that the
Corning gauge reached a level where substantial flooding
occurred (between 8 and 10.5 feet) an average of 24 more
days per year during the tree growing season from 1993–
1999 than from 1981–1992. Dr. Overton’s data also
indicated that flooding occurred in the Management Area
an average of 8.5 more days per year from 1993–1999
during the “critical” tree growing period of June to Au-
gust.
During 1999 and 2000, the region suffered a moderate
drought. Therefore, according to both the United States
and the Commission, the deviations during 1999 and 2000
did not have much practical effect because the water flow
was low and did not cause flooding. However, the Com-
mission witnesses testified that drought conditions in-
creased tree mortality in the Management Area. Trees
ARKANSAS GAME & FISH COMM v. US 14
weakened by six years of additional flooding during the
tree growing season could not survive the drought.
The final question addressed at the hearing was the
predictability of the results following the government’s
actions. The Claims Court found that the Corps was
unaware in 1993 that deviations would cause additional
flooding in the Management Area. Indeed, one Corps
official testified that the Corps believed the downstream
effect of the deviations would diminish before the water
reached Arkansas. However, the Commission sent re-
peated letters to the Corps claiming that the ongoing
deviations were causing additional flooding in the Man-
agement Area and also raised its concerns in the White
River Group and Black River Group meetings. Still, in its
1999 draft EA, the Corps would have found “no significant
impact” based on the proposed revisions to the plan. The
Corps only changed its mind about the effects of the
deviations after conducting the May 2000 and March 2001
test releases with the Commission which confirmed the
possible adverse impacts on the Management Area and
led the Corps to return to the release rates in the original
1953 plan.
The parties also disputed the issue of causation and
the amount of damage caused by the flooding. The Com-
mission’s expert testified that half of the damaged trees
would die within five years and the living damaged trees
were worth half of their original value. The United States
argued that this testimony was inadmissible because so-
called cruise maps on which the testimony was based had
been destroyed and that the expert evidence in any event
used unreliable guesses and was inadmissible under the
Federal Rules of Evidence and Daubert v. Merrell Dow
Pharmaceuticals., Inc., 509 U.S. 579 (1993). The Com-
mission also sought regeneration costs to restore areas
suffering from invasions of new wetland vegetation to
15 ARKANSAS GAME & FISH COMM v. US
their pre-deviation condition. The United States con-
tended that the Commission failed to prove the United
States’ actions resulted in the devaluation from invasive
growth and, even if it did, the damages were only conse-
quential.
C
The Claims Court concluded that the deviations from
the 1953 Water Control Manual were “interim deviations”
that were “approved at various times from 1993 to 2000.”
87 Fed. Cl. at 603. The court also found that:
Certainly no permanent flowage easement in the
Management Area was taken by the flooding at-
tributable to the Corps’ deviations from the oper-
ating Plan for Clearwater Dam. . . . [A] temporary
flowage easement is a necessary foundation for
the Commission’s takings claim, as has always
been evident from the Commission’s pleadings
and proofs.”
Id. at 617 (emphasis in original); see also id. at 619–20
(finding appropriation was “temporary rather than per-
manent”). The court concluded that a takings claim could
be based on such a temporary activity. Id. at 618.
The Claims Court relied on the observations by Drs.
Heitmeyer and Overton and determined that the devia-
tions caused a substantial enough increase in flooding to
constitute the taking of a flowage easement. It also held
that the flooding was the predictable result of government
action because with any “reasonable investigation of the
effects of the deviations . . . it would have been able to
predict” that the deviations would cause flooding and
damage timber in the Management Area. 87 Fed. Cl. at
623. The Claims Court also concluded that the increased
tree growing season flooding caused increased timber
ARKANSAS GAME & FISH COMM v. US 16
mortality in the Management Area, and therefore
awarded damages based on the loss of timber and regen-
eration costs for some areas that had been inundated by
new wetland vegetation. The Claims Court awarded $5.5
million in damages for dead or declining timber, relying
on the Commission expert’s testimony about the value of
the trees. 5 It also awarded $176,428.34 in damages for
regeneration costs, but it granted damages only for areas
classified as having suffered “severe” rather than “heavy”
or “moderate” effects.
The United States appealed, contending that no tak-
ing had occurred, and that if it had, the damages were
overstated. The Commission cross-appealed, contending
that the Claims Court should have awarded additional
damages for regeneration. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(3).
DISCUSSION
Determining whether a taking has occurred is a
“question of law based on factual underpinnings,” and as
such, we review the Claims Court’s legal analysis and
conclusion de novo and its factual findings for clear error.
See Ridge Line, Inc. v. United States, 346 F.3d 1346, 1352
(Fed. Cir. 2003).
I
In general, if particular government action would con-
stitute a taking when permanently continued, temporary
action of the same nature may lead to a temporary tak-
ings claim. See First English Evangelical Lutheran
Church of Glendale v. Cnty. of Los Angeles, 482 U.S. 304,
328 (1987). However, cases involving flooding and flow-
age easements are different. Both Supreme Court prece-
5 The court rejected the claim that the testimony of
the Commission’s experts should be excluded.
17 ARKANSAS GAME & FISH COMM v. US
dent and our own precedent dictate that we must distin-
guish between a tort and a taking. An injury that is only
“in its nature indirect and consequential,” i.e. a tort,
cannot be a taking. Sanguinetti v. United States, 264 U.S.
146, 150 (1924). The Supreme Court has long recognized
that to be considered a taking overflows must “constitute
an actual, permanent invasion of the land, amounting to
an appropriation of and not merely an injury to the prop-
erty.” Id. at 149 (emphases added). The Court has stated
that an invasion is permanent when there is a “perma-
nent condition of continual overflow” or “a permanent
liability to intermittent but inevitably recurring over-
flows.” United States v. Cress, 243 U.S. 316, 328 (1917);
see also United States v. Kansas City Life Ins. Co., 339
U.S. 799, 810 n.8 (1950) (quoting Cress and finding a
taking where the plaintiff’s land was “permanently in-
vaded by the percolation of . . . waters”).
In Cress, the Court found a taking where the erection
of a lock and dam on the Cumberland River “subject[ed]
[the plaintiff’s land] to frequent overflows of water.”
Cress, 243 U.S. at 318. The Court explained that these
intermittent overflows showed “that this [was] not a case
of temporary flooding or consequential injury,” where
takings liability would be denied, “but [instead] a perma-
nent condition, resulting from the erection of the lock and
dam.” Id. at 327 (emphasis added). It further stated that
there was “no difference of kind . . . between a permanent
condition of continual overflow [which had previously
been found to constitute a taking] . . . and a permanent
liability to intermittent but inevitably recurring over-
flows.” Id. at 328 (emphasis added).
In United States v. Dickinson, 331 U.S. 745, 746–47
(1947), the Court also found a taking based on a perma-
nent condition. In Dickinson, the United States con-
structed a dam, and the “water above the dam was . . .
ARKANSAS GAME & FISH COMM v. US 18
impounded to create a deeper channel,” thereby perma-
nently raising the river level, “permanently flood[ing]”
some of the adjacent land, and subjecting more of it to
intermittent overflows. Id. at 746–47. Even though
Dickinson later “reclaimed most of his land which the
Government originally took by flooding,” the Court found
that the reclamation did not “change[ ] the fact that the
land was taken [in the first place] . . . and an obligation to
pay for it then arose.” Id. at 751. The nature of the
government’s action remained permanent, even though
the reclamation had mitigated some of the effects. Again,
the Court distinguished between invasions that were
permanent or temporary in character. Summarizing
these cases, in Loretto v. Teleprompter Manhattan CATV
Corp., 458 U.S. 419, 428 (1982), the Supreme Court noted
that it has “consistently distinguished between flooding
cases involving a permanent physical occupation, on the
one hand, and cases involving a more temporary invasion
. . . that causes consequential damages within, on the
other.”
Numerous cases from our predecessor court have
similarly held that inherently temporary conditions
cannot result in the taking of a flowage easement. See
Barnes v. United States, 538 F.2d 865, 870 (Ct. Cl. 1976);
Nat’l By-Products, Inc. v. United States, 405 F.2d 1256,
1273 (Ct. Cl. 1969); Fromme v. United States, 412 F.2d
1192, 1197 (Ct. Cl. 1969). “The plaintiff must establish
that flooding will ‘inevitably recur,’ in the phrasing of the
Cress case.” National By-Products, 405 F.2d at 1273.
“[G]overnment-induced flooding not proved to be inevita-
bly recurring occupies the category of mere consequential
injury, or tort.” Barnes, 538 F.2d at 870.
The Commission argues that under our decision in
Ridge Line a permanent invasion is not required and that
appropriation of a “temporary flowage easement” is
19 ARKANSAS GAME & FISH COMM v. US
sufficient. Commission’s Br. 39. This argument is with-
out support. A panel decision of this court cannot, of
course, overturn Supreme Court precedent or our prece-
dent. In any event, we did not purport to do so in Ridge
Line. The case involved a permanent condition––runoff
caused by the construction of a postal facility. 6 As such,
we had no reason to address whether an inherently tem-
porary condition could be considered a taking. The hold-
ing in Ridge Line is fully consistent with the Cress case’s
emphasis on the “inevitably recurring” nature of intermit-
tent flooding.
In Ridge Line we noted that the Claims Court had
erred in “confin[ing] its analysis of liability to whether the
government’s actions constituted a permanent and exclu-
sive occupation.” 346 F.3d at 1352, 1354 (internal quota-
tion omitted). We concluded that “permanent destruction
or exclusive occupation by government runoff is not
always required for a successful taking[ ].” Id. at 1354.
In other words, we explained, the “occupation” need not
be exclusive and the destruction need not be “permanent.”
Id. at 1352. “[I]ntermittent flooding of private land can
constitute a taking of an easement.” Id. at 1354. Thus,
we confirmed that intermittent but inevitably recurring
flooding could constitute a taking and that continuous
inundation was not required. Id. at 1357. But, citing
Barnes, we noted that “government-induced flooding not
proved to be inevitably recurring occupies the category of
mere consequential injury, or tort.” Id. at 1355 (quoting
Barnes, 538 F.2d at 870). The condition leading to the
“intermittent, but inevitably recurring” flooding, id. at
6 Although the plaintiff later refilled the land
eroded by government runoff, Dickinson, as discussed
above, shows that later reclamation by the plaintiff does
not defeat the otherwise permanent nature of an invasion.
ARKANSAS GAME & FISH COMM v. US 20
1357, must be permanent. Otherwise, it could not be
“inevitably recurring.”
Ridge Line also clarified that, in distinguishing be-
tween a tort and a taking, courts must additionally con-
sider 1) whether “the government’s actions were
sufficiently substantial to justify a takings remedy” and 2)
whether the harm suffered by the plaintiff was “the
predictable result of the government’s action.” 346 F.3d
at 1355, 1356. The Ridge Line court relied on San-
guinetti, where the Supreme Court found no taking in
that case because it was unclear whether any substantial
additional flooding actually occurred and whether the
overflow was “the direct result of the [canal]” and thus
would be reasonably anticipated by the government. 264
U.S. at 149. Similarly, in John Horstmann Co. v. United
States, 257 U.S. 138, 146 (1921), the Supreme Court
found no taking where flooding was caused by the move-
ment of underground percolating waters “which no hu-
man knowledge could even predict.”
The parties in this case vigorously dispute whether
the extent and frequency of flooding satisfied the substan-
tiality requirement and whether it was predictable.
However, we need not decide whether the flooding on the
Management Area was “sufficiently substantial to justify
a takings remedy” or “the predictable result of the gov-
ernment’s action,” Ridge Line, 346 F.3d at 1355, 1356,
because the deviations were by their very nature tempo-
rary and, therefore, cannot be “inevitably recurring” or
constitute the taking of a flowage easement. For this
reason, we also need not address the parties’ dispute as to
the calculation of damages.
II
Most government-induced flooding cases involve over-
flows caused by permanent structures or improvements,
21 ARKANSAS GAME & FISH COMM v. US
such as dams, canals, or levees. See, e.g., Dickinson, 331
U.S. at 746–47 (involving the construction of a dam and
the resulting rise in the river level); Sanguinetti, 264 U.S.
at 147 (involving a canal insufficient to carry away flood
waters); Cress, 243 U.S. at 327 (involving erection of a
lock and dam); Ridge Line, 346 F.3d at 1351 (involving
runoff caused by construction of Post Office facility); Nat’l
By-Products, 405 F.2d at 1259–61 (involving a levee built
on one side of a creek without a corresponding levee on
the other side). Permanent conditions often, but not
always, yield inevitably recurring flooding. Compare
Cress, 243 U.S. at 327 (finding inevitably recurring flood-
ing), with National By-Products, 405 F.2d at 1274–75
(finding no taking because plaintiffs did not prove floods
caused by levees would inevitably recur).
As with structural cases, in determining whether a
governmental decision to release water from a dam can
result in a taking, we must distinguish between action
which is by its nature temporary and that which is per-
manent. But in distinguishing between temporary and
permanent action, we do not focus on a structure and its
consequence. Rather we must focus on whether the
government flood control policy was a permanent or
temporary policy. Releases that are ad hoc or temporary
cannot, by their very nature, be inevitably recurring.
The Commission’s entire theory is contrary to govern-
ing law. The Commission does not contend that the
deviations from the 1953 plan and the resulting flooding
were inevitably recurring. Rather, the Commission
contends that temporary deviations are sufficient. In its
brief, it contended “that [the fact that] the Corps eventu-
ally stopped [the] deviations only render[ed] the taking
temporary,” Commission’s Br. 41, and therefore claims
“the [United States] appropriated a temporary flowage
easement for which it must pay,” id. at 39 (emphasis
ARKANSAS GAME & FISH COMM v. US 22
added). At oral argument, the Commission similarly
argued that it “do[es] not think the law requires [the
deviations] to be permanent or that the government
intended . . . to make [them] permanent.” Oral arg. at
18:17–18:25, available at http://www.cafc.uscourts.gov/. It
argued again that “the fact that . . . the United States
abandoned its easement only makes [the taking] tempo-
rary.” Id. at 20:33–20:41.
The Commission’s concession that the government ac-
tion was temporary in nature is fully consistent with the
established facts. The undisputed facts are clear that the
governmental action was designed to be temporary and
that the Corps never approved a permanent change in the
pre-existing flow rates. As discussed above, all of the
deviations from 1993 to 2000 were approved only as
temporary or interim deviations. The multiple interim
plans differed. Even where deviations were the same in
consecutive years, such as in 1994 and 1995, the Corps
had to approve an extension of the interim deviation plan
for the second year.
The Commission itself similarly referred to the devia-
tions as temporary or interim. During oral argument, the
Commission noted that when deviations first began they
were temporary and made in response to particular
requests by specific interests and that the permanent
revisions to the plan were never approved. Moreover, in
an internal memorandum summarizing the first meeting
of the Black River Group in 1996, a Commission official
described the 1994–1995 deviations as “a temporary
interim plan.” J.A. 9145. In a later memorandum, a
second Commission official acknowledged that “[d]uring
the years[ ] 95, 96, and 97[,] the so-called interim plan
was tried.” Id. at 2434. Martin Blaney, the Commission’s
Statewide Habitat Coordinator, testified at trial that an
“interim plan” had been used from 1998–2000. Id. at
23 ARKANSAS GAME & FISH COMM v. US
1811. Similarly, Robert Zachary, the Wildlife Supervisor
for the Commission, testified that the Corps’ “interim plan
of operation” caused tree growing season flooding in 1996.
Id. at 1687.
Therefore, the numerous deviation plans were inher-
ently temporary, and the Corps, despite considering
permanent revisions in 1999, never approved any of the
deviations as a permanent policy. In order to make any
permanent change to the release rates, Corps regulations
required compliance with federal regulations. The Corps
did not even begin the EA or EIS necessary to comply
with NEPA until 1999, and it never completed the neces-
sary steps to implement a permanent revision of the
Water Control Plan. As such, the plaintiffs have not met
their burden to prove that the increased flooding would be
“inevitably recurring” because the deviations were explic-
itly temporary.
Binding decisions of the Court of Claims, our prede-
cessor court, in Barnes and Fromme found no taking
under similar circumstances. In Barnes, the Fort Randall
Dam was constructed in 1952, and the government began
to release water “to evacuate the excess water accumula-
tion caused by rains and melting snows” in 1969. 538
F.2d at 868. The releases caused intermittent flooding
from 1969–1973 and again beginning in 1975. Id. at 868–
69, 872. Noting that “the flooding [was] of a type which
will be inevitably recurring,” id. at 872, the court deter-
mined that a taking had occurred but held that it did not
occur until “the permanent character of intermittent
flooding could fairly be perceived” in 1973, id. at 873.
Consequently, it did not allow the plaintiffs to recover for
crop damage sustained from 1969–1973 because it was
not obvious that the releases and the flooding would be
permanent until 1973. Id.
ARKANSAS GAME & FISH COMM v. US 24
In Fromme, the Corps constructed a channel and
levee near the plaintiff’s property. 412 F.2d at 1194.
During construction of this project, from 1965–1967, the
defendant maintained a “temporary spoil bank,” which
caused the plaintiff’s land to flood “for a substantially
longer time than would have been the case if the spoil
bank and partially completed levee had not been in exis-
tence.” Id. at 1195. The court held that no taking oc-
curred during the 1965–1967 period because the spoil
bank only “represented a temporary situation,” and the
channel would not lead to the “inevitably recurring flood-
ings which the Supreme Court [had] stressed . . . in
Cress.” Id. at 1196–97. Hence, both Barnes and Fromme
indicate that flooding must be a permanent or inevitably
recurring condition, rather than an inherently temporary
situation, to constitute the taking of a flowage easement. 7
7 The Commission argues that Cooper v. United
States, 827 F.2d 762 (Fed. Cir. 1987) is analogous and
supports finding a taking in this case. In Cooper, during
the period that the Corps was conducting construction
along a waterway (1979–1984), part of a river was
blocked, subjecting the plaintiff’s timbered land “to stand-
ing flood water for long periods of time during the [grow-
ing season]” of that period. Id. at 762. The court found
that the temporary flooding constituted a taking of plain-
tiff’s timber. Id. at 763. However, the court did not
discuss the tort versus taking distinction. Moreover, it
explicitly noted that its decision was “not controlled by [ ]
cases . . . dealing with flowage easements” because the
plaintiff had not requested compensation for a flowage
easement. Id. We have consistently held that panel
authority that does not address an issue is not binding as
to the unaddressed issue. See, e.g., Sacco v. United
States, 452 F.3d 1305, 1308 (Fed. Cir. 2006) (finding that
a prior case “is not binding precedent on [a] point because
the court did not address the issue” in that prior case);
Boeing N. Am., Inc. v. Roche, 298 F.3d 1274, 1282 (Fed.
Cir. 2002) (“[W]e are not bound by [a prior opinion] on the
25 ARKANSAS GAME & FISH COMM v. US
Because the deviations from the 1953 plan were only
temporary, they cannot constitute a taking. The actions
at most created tort liability. We recognize that in other
contexts the distinction between a temporary and perma-
nent release plan may be difficult to define. The govern-
ment cannot, of course, avoid takings liability by
characterizing inevitably recurring events as merely a
series of temporary decisions. Here, however, the Corps’
regulatory scheme has itself clearly distinguished be-
tween permanent and temporary release rates. The
deviations in question were plainly temporary and the
Corps eventually reverted to the permanent plan. Under
such circumstances, the releases cannot be characterized
as inevitably recurring.
IV
For the foregoing reasons, we reverse the Claims
Court’s decision that the United States had taken a
flowage easement on the Commission’s land without just
compensation.
REVERSED
COSTS
No costs.
issue . . . since [that] issue was neither argued nor dis-
cussed in our opinion.”); see also Brecht v. Abrahamson,
507 U.S. 619, 631 (1993) (stating that if a decision does
not “squarely address[ ] [an] issue,” a court remains “free
to address the issue on the merits” in a subsequent case).
Therefore, Cooper does not govern. We must follow cases
such as Cress, Barnes, and Fromme as to the test for the
taking of a flowage easement.
United States Court of Appeals
for the Federal Circuit
__________________________
ARKANSAS GAME & FISH COMMISSION,
Plaintiff-Appellee,
v.
UNITED STATES,
Defendant-Appellant.
__________________________
2009-5121, 2010-5029
__________________________
Appeal from the United States Court of Federal Claims
in 05-CV-381, Judge Charles F. Lettow.
__________________________
NEWMAN, Circuit Judge, dissenting.
The Court of Federal Claims found that the six years of
improper government induced flooding caused substantial
damage to the Donaldson Black River Wildlife Management
Area. The flooding resulted from deviations from the agreed
water release schedule of the Clearwater Dam Water Con-
trol Manual, which schedule had been in place since 1953
and had operated, without injury to the preserve, until the
Army Corps of Engineers decided to depart from the Manual
and to provide increased flooding from 1993 through 2000.
The Arkansas Commission raised strong objections, but the
increased flooding was not abated. The Court of Federal
Claims found, and my colleagues on this panel do not dis-
pute, that the destruction of valuable hardwood and other
ARKANSAS GAME & FISH COMM v. US 2
injurious changes in the Arkansas preserve were due to
these extensive improper flooding activities.
After the continuing protests by the Commission, the
Corps of Engineers finally came to investigate in March
2001 and immediately ceased the increased flooding, stating
that there was “clear potential for damage to bottomland
hardwoods.” Transcript of Colonel Holden’s Remarks to the
Black River Operations Public Meetings, April 25 and 26,
2001. J.A. 9802. However, the damage had already been
done.
The Court of Federal Claims, after a two-week trial in-
cluding eighteen witnesses, documentary evidence, and an
actual site visit, held that a taking of property had occurred
in terms of the Fifth Amendment, and awarded damages for
the losses incurred. 1 My colleagues on this panel now
conclude that no taking occurred and no liability ensued,
giving the reason that the Corps eventually abated its
destructive flooding. In so ruling, the court departs from
constitutional right and well-established precedent. I
respectfully dissent.
DISCUSSION
This Wildlife Management Area spans approximately
23,000 acres along the banks of the Black River in north-
eastern Arkansas. The Management Area serves as a
hardwood timber resource with systematic harvests of
mature oak, and also provides habitat for migrating water-
fowl and serves as a hunting preserve. The Water Control
Plan for Clearwater Dam had been in place for forty years;
the water-release plan had been devised after five years of
experimental study and interaction of all the interests
1 Arkansas Game & Fish Comm’n v. United States, 87
Fed. Cl. 594 (2009).
3 ARKANSAS GAME & FISH COMM v. US
served by these waters, and served these interests well,
until 1993, when the Corps of Engineers began to deviate
from the authorized Plan. The Commission repeatedly
complained to the Corps that the deviations were causing
extensive flooding that was damaging the bottomland
hardwoods and other aspects of the Wildlife Management
Area. The Corps did not investigate until 2001, when it
confirmed the Commission’s concerns and returned to the
authorized Water Control Plan.
The floodings drove the hardwood ecosystem to a state
of collapse, killing most of the red oaks and many white
oaks. Although bottomland ecosystems exist with naturally-
occurring seasonal flooding and other climate variations, the
nuttall oak and overcup oak, in particular, could not tolerate
this artificial flood regime that covered the trees’ root sys-
tems for extended unnatural periods during the growing
season, for six consecutive years. The record states that the
increased releases in 1999 and 2000 were less injurious
because there was a drought, but the damage had already
been done.
The Court of Federal Claims found that the government
was responsible for the flooding and the injury caused
thereby, that “the damage done to the Commission’s prop-
erty interest in its timber was permanent rather than
temporary,” and that “the government’s superinduced flows
so profoundly disrupted certain regions of the Management
Area that the Commission could no longer use those regions
for their intended purposes, i.e., providing habitat for wild-
life and timber for harvest.” 87 Fed. Cl. at 620. The court
found that “the Corps of Engineers had been repeatedly
warned by members of the Commission,” and that “the
effect of deviations in the Management Area was predict-
able, using readily available resources and hydrologic
skills.” Id. at 622-23. My colleagues do not dispute these
ARKANSAS GAME & FISH COMM v. US 4
findings. Instead, my colleagues rule that no property
interest was taken in Fifth Amendment terms, on the
theory that “[b]ecause the deviations from the 1953 plan
were only temporary, they cannot constitute a taking.” Maj.
op. at 25. This conclusion, and the reasoning on which it is
based, diverge from constitutional precedent, and contra-
vene the large body of decisions arising from government
operations involving water management.
Government-induced flooding is a recognized physical
intrusion. The Court has “long considered a physical intru-
sion by government to be a property restriction of an unusu-
ally serious character for purposes of the Takings Clause.”
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.
419, 426 (1982). In Loretto the Court cited flooding cases to
illustrate the constitutional treatment of temporary intru-
sions, observing that they are subject to a “complex balanc-
ing process,” id. at 436 n.12. Applying this balancing
process to floodings, the courts have recognized that “iso-
lated invasions, such as one or two floodings . . ., do not
make a taking . . . , but repeated invasions of the same type
have often been held to result in an involuntary servitude.”
Ridge Line, Inc. v. United States, 346 F.3d 1346, 1357 (Fed.
Cir. 2003) (quoting Eyherabide v. United States, 345 F.2d
565, 569 (Ct. Cl. 1965)). When the invasion “preempt[s] the
owner’s right to enjoy his property for an extended period of
time,” the principles of constitutional deprivation of prop-
erty apply. Id. at 1356.
Precedent well establishes that when property “is actu-
ally invaded by superinduced additions of water . . . so as to
effectively destroy or impair its usefulness, it is a taking
within the meaning of the Constitution.” Pumpelly v. Green
Bay Co., 80 U.S. 166, 181 (1872). Precedent does not re-
quire constant or permanent flooding, and eventual abate-
ment of the flooding does not defeat entitlement to just
5 ARKANSAS GAME & FISH COMM v. US
compensation; the specific facts must be considered, as for
any invasion of property. See, e.g., United States v. Dickin-
son, 331 U.S. 745, 751 (1947) (finding a taking although the
plaintiff reclaimed most of the land that the government
had flooded); United States v. Cress, 243 U.S. 316, 328
(1917) (a taking occurred where the erection of a lock and
dam subjected the plaintiff’s land to frequent overflows of
water that were intermittent but recurring); Ridge Line, 346
F.3d at 1354-1355 (finding that there may be a taking
although the property owner had constructed water deten-
tion facilities that abated the flooding); Cooper v. United
States, 827 F.2d 762 (Fed. Cir. 1987) (finding a taking where
flooding was remedied by the Corps after five years); Barnes
v. United States, 538 F.2d 865, 869, 872 (Ct. Cl.1976) (find-
ing a taking where a government dam caused parts of the
plaintiff’s land to be subject to additional intermittent
flooding, reducing crop yields); Eyherabide, 345 F.2d at 607
(“The measure of plaintiffs’ recovery is for the temporary
taking (from 1954 through 1959),” when the plaintiff’s land
was subject to intermittent physical invasions during that
period.).
In turn, short duration floods have been held not to con-
stitute a taking. See, e.g., Hartwig v. United States, 485
F.2d 615, 620 (Ct. Cl. 1973) (“The principle may be reduced
to the simple expression: One flooding does not constitute a
taking.”). As another example, the flooding in National By-
Products, Inc. v. United States, 405 F.2d 1256, 1257 (Ct. Cl.
1969), lasted for only two months, and the court held that
the event did not rise to the level of a taking. Also, on facts
where the flooding did not produce extensive or permanent
damage, a taking did not occur, as in Sanguinetti v. United
States, 264 U.S. 146, 149-50 (1924) (“Prior to the construc-
tion of the canal the land had been subject to the same
periodical overflow. . . . If there was any permanent im-
pairment of value, the extent of it does not appear. It was
ARKANSAS GAME & FISH COMM v. US 6
not shown that the overflow was the direct or necessary
result of the structure; nor that it was within the contem-
plation of or reasonably to be anticipated by the Govern-
ment.”).
When the plaintiff actually benefitted from the govern-
ment operation, no taking was found, as in Fromme v.
United States, 412 F.2d 1192 (Ct. Cl. 1969), where construc-
tion of a channel caused two years of flooding that left part
of the plaintiff’s land in a boggy and weedy condition, a
condition that was expected to disappear within two to three
years. Citing evidence that the land had previously been
subject to occasional flooding, and that the new channel was
“very beneficial to the plaintiff in connection with the devel-
opment of an extensive and valuable deposit of sand and
gravel in her land,” the court concluded that “the evidence
in the record fails to show a taking.” Id. at 1194-97.
Precedent recognizes that the flood-induced destruction
of timber is permanent injury, and is compensable within
the meaning of the Fifth Amendment. On facts close to
those herein, in Cooper v. United States, 827 F.2d 762 (Fed.
Cir. 1987), during the five-year period in which the Corps of
Engineers was conducting construction along a waterway,
river blockage subjected Cooper’s timbered land to standing
flood water for prolonged periods during the spring and
summer growing seasons, killing the timber. The court held
that the United States had effected a taking, although the
flooding was abated by the Corps after five years. Id. at
763-64 (citing Armstrong v. United States, 364 U.S. 40, 48
(1960); Murray v. United States, 817 F.2d 1580, 1583 (Fed.
Cir. 1987) (destruction of a property interest is a com-
pensable taking within the meaning of the Fifth Amend-
ment)). The court in Cooper awarded compensation based
on the value of the destroyed timber. Id. at 764.
7 ARKANSAS GAME & FISH COMM v. US
Binding precedent directly contravenes the court’s deci-
sion today. The floods in Cooper and the government activ-
ity that caused them were no less “inherently temporary,”
the words by which the majority characterizes the flooding,
see maj. op. at 23, than the recurring flood releases here. In
Cooper the flooding recurred each year, for as long as the
river was clogged by the construction conducted by the
Corps, just as the flooding here recurred each year, for as
long as the Corps continued the improper release deviations.
Contrary to the court’s holding today, no court has held
that flooding damage is never compensable if the flooding is
eventually stopped, whatever the injury. The decision in
Fromme is misapplied by my colleagues, for Fromme illus-
trates the traditional balance that characterizes takings
decisions, not a per se rule against taking if the flooding is
eventually stopped. The Court of Federal Claims correctly
held that: “The Supreme Court permits recovery based on
temporary takings. . . . In effect, the temporary taking of a
flowage easement resulted in a permanent taking of tim-
ber.” 87 Fed. Cl. at 624. The trees that were killed did not
revive. No error has been shown in the trial court’s view of
the facts and law.
My colleagues err in their analysis, incorrectly holding
that the issue is solely whether the injurious flooding was
eventually ended. My colleagues err in ruling that: “we do
not focus on a structure and its consequence. Rather we
must focus on whether the government flood control policy
was a permanent or temporary policy.” Maj. op. at 21. That
view of the Fifth Amendment is incorrect. See, e.g., Owen v.
United States, 851 F.2d 1404, 1412 (Fed. Cir. 1988) (en
banc) (“[I]t is not the location of the cause of the damage
that is relevant, but the location and permanence of the
effect of the government action causing the damage that is
the proper focus of the taking analysis.”). The question is
ARKANSAS GAME & FISH COMM v. US 8
not solely whether the Corps’ departure from the flood
control policy of the Water Control Manual was permanent
or was abated after six years, but whether the increased
flooding caused significant injury before the flooding was
abated, such that, on balance, the Fifth Amendment re-
quires just compensation.
The panel majority appears to acknowledge that “if par-
ticular government action would constitute a taking when
permanently continued, temporary action of the same
nature may lead to a temporary takings claim,” maj. op. at
16, but then discards this possibility as a matter of law in
concluding that “the deviations were by their very nature
temporary and, therefore, cannot be ‘inevitably recurring’ or
constitute the taking of a flowage easement.” Maj. op. at 20.
Thus the panel majority holds, contrary to law, that be-
cause the improper Arkansas flooding was not of permanent
duration, there cannot be a taking despite the permanent
flood damage. See, e.g., Navajo Nation v. United States, 631
F.3d 1268, 1278 (Fed. Cir. 2011) (“Indeed, our precedent
requires that temporary reversible takings must be ana-
lyzed in the same constitutional framework applied to
permanent irreversible takings.”) (quoting Yuba Natural
Res., Inc. v. United States, 821 F.2d 638, 641 (Fed. Cir.
1987)); Skip Kirchdorfer, Inc. v. United States, 6 F.3d 1573,
1583 (Fed. Cir. 1993) (explaining that the “limited duration
of [a] taking is relevant to the issue of what compensation is
just, and not to the issue of whether a taking has occurred”).
The findings of the Court of Federal Claims are not dis-
puted by my colleagues as to the nature, cause, and amount
of the damage to the Arkansas property. The determination
that a compensable taking occurred is fully in conformity
with precedent. My colleagues’ ruling contradicts the entire
body of precedent relating to the application of the Fifth
9 ARKANSAS GAME & FISH COMM v. US
Amendment to government-induced flooding. I respectfully
dissent.