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.
__________________________
ON PETITION FOR PANEL REHEARING AND
REHEARING EN BANC
__________________________
JULIE D. GREATHOUSE, Perkins & Trotter, PLLC, of
Little Rock, Arkansas filed a petition for rehearing en
banc for plaintiff-cross appellant. With her on the peti-
tion 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, filed a response for defen-
dant-appellant. With him on the response was IGNACIA S.
MORENO, Assistant Attorney General. Of counsel was
SAMBHAV N. SANKAR, Attorney.
__________________________
ARKANSAS GAME & FISH COMM v. US 2
Before RADER, Chief Judge, NEWMAN, LOURIE, BRYSON,
GAJARSA, LINN, DYK, PROST, MOORE, O’MALLEY, REYNA,
Circuit Judges, and WHYTE ∗ , District Judge.
PER CURIAM.
DYK, Circuit Judge, with whom GAJARSA and LINN, Cir-
cuit Judges, join, concurs in the denial of the petition for
rehearing en banc.
MOORE, Circuit Judge, with whom O’MALLEY and REYNA,
Circuit Judges, join, dissents from the denial of the peti-
tion for rehearing en banc.
NEWMAN, Circuit Judge, dissents from the denial of the
petition for rehearing en banc.
ORDER
A petition for rehearing en banc was filed by Plaintiff-
Cross Appellant, and a response thereto was invited by
the court and filed by Defendant-Appellant. The petition
for rehearing was referred to the panel that heard the
appeals, and thereafter the petition for rehearing en banc
and the response were referred to the circuit judges who
are authorized to request a poll of whether to rehear the
appeals en banc. A poll was requested, taken, and failed.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The petition of Plaintiff-Cross Appellant for panel
rehearing is denied.
(2) The petition of Plaintiff-Cross Appellant for re-
hearing en banc is denied.
∗
Honorable Ronald M. Whyte, District Judge,
United States District Court for the Northern District of
California, sitting by designation, did not participate in
the decision of whether to rehear the appeal en banc.
3 ARKANSAS GAME & FISH COMM v. US
(3) The mandate of the court will issue on August 18,
2011.
FOR THE COURT
August 11, 2011 /s/ Jan Horbaly
Date Jan Horbaly
Clerk
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
__________________________
Appeal from the United States Court of Federal
Claims in case no. 05-CV-381, Judge Charles F. Lettow.
__________________________
DYK, Circuit Judge, with whom GAJARSA and LINN, Cir-
cuit Judges, join, concurring in the denial of the petition
for rehearing en banc.
Contrary to the dissents’ characterization, the ap-
proach here was compelled by existing law established by
settled Supreme Court and circuit precedent.
The Supreme Court has long required that we “distin-
guish[ ] between torts and takings.” See Ridge Line, Inc.
v. United States, 346 F.3d 1346, 1355 (Fed. Cir. 2003)
(citing Barnes v. United States, 538 F.2d 865, 870 (Ct. Cl.
1976)). A taking, involving a “permanent condition of
continual overflow” or a “permanent liability to intermit-
tent but inevitably recurring overflows,” United States v.
Cress, 243 U.S. 316, 328 (1917), is distinct from a tort––
ARKANSAS GAME & FISH COMM v. US 2
an “injury [that] was in its nature indirect and consequen-
tial,” Sanguinetti v. United States, 264 U.S. 146, 150
(1924).
In drawing this line, the “[Supreme] Court has consis-
tently distinguished between flooding cases involving a
permanent physical occupation . . . and cases involving a
more temporary invasion.” Loretto v. Teleprompter Man-
hattan CATV Corp., 458 U.S. 419, 428 (1982). “A taking
has always been found only in the former situation.” Id.
Indeed, flooding only amounts to a taking when it “consti-
tute[s] an actual, permanent invasion of the land,
amounting to an appropriation of and not merely an
injury to the property.” Sanguinetti, 264 U.S. at 149.
Flooding constitutes this type of permanent invasion
when there is a “permanent condition of continual over-
flow” or “a permanent liability to intermittent but inevi-
tably recurring overflows.” Cress, 243 U.S. at 328; see
also United States v. Kansas City Life Ins. Co., 339 U.S.
799, 809 n.8 (1950) (same). The Court in Cress expressly
distinguished the “inevitably recurring” flooding in that
case, which was caused by the erection of a lock and dam,
from “a case of temporary flooding or consequential in-
jury.” 243 U.S. at 327. Moreover, our predecessor court
consistently recognized that flooding must be inevitably
recurring to constitute a taking. The Court of Claims has
held that “[t]he plaintiff must establish that flooding will
‘inevitably recur,’ in the phrasing of the Cress case.” Nat’l
By-Prods., Inc. v. United States, 405 F.2d 1256, 1273,
1274 (Ct. Cl. 1969) (finding that plaintiff did not prove a
taking because it “failed to establish that the floodings . . .
will inevitably recur”). Therefore, the Court of Claims has
rejected takings claims when flooding was caused by a
“temporary situation” which would not lead to the “inevi-
tably recurring floodings which the Supreme Court
stressed . . . in the Cress case.” Fromme v. United States,
3 ARKANSAS GAME & FISH COMM v. US
412 F.2d 1192, 1196–97 (Ct. Cl. 1969). “Government-
induced flooding not proved to be inevitably recurring
occupies the category of mere consequential injury, or
tort.” Ridge Line, 346 F.3d at 1355 (quoting Barnes, 538
F.2d at 870).
The Court of Claims’ decision in Barnes clearly illus-
trates this long-governing rule. In Barnes, the govern-
ment released water from a dam starting in 1969, which
caused flooding on plaintiffs’ properties from 1969–1973
and again in 1975. 538 F.2d at 868–69. The government
stipulated that the releases which caused the flooding
would continue. Id. at 870. Based on the premise that
the intermittent flooding would “continue indefinitely,”
the court found that the flooding was a taking because it
“will be inevitably recurring.” Id. at 870, 872. However,
it held that the flooding could not constitute a taking until
“the permanent character of [the] intermittent flooding
could fairly be perceived,” and it therefore denied recovery
for crop damage sustained before 1973, which was when it
could “be said with relative certainty that the flooding
would be permanent.” Id. at 873.
Here it was anything but “inevitable” that the gov-
ernment would continue the temporary policies that
caused the flooding. The United States Army Corps of
Engineers (“Corps”) made a series of ad hoc and inde-
pendent decisions to deviate from the normal release
rates at a dam in Missouri, which sometimes caused
intermittent flooding on the plaintiff’s property. The
Corps’ decisions about whether or not to deviate were
made on a yearly basis. The Corps attempted to bring
interested parties together to formulate a new release
plan for the dam; however, the groups responsible were
unable to agree on a long-term solution. Ark. Game &
Fish Comm’n v. United States, 637 F.3d 1366, 1369–70
(Fed. Cir. 2011). As a result, multiple interim plans were
ARKANSAS GAME & FISH COMM v. US 4
adopted. Id. These multiple interim deviation plans were
viewed by everyone involved, including the plaintiff, as
“interim operating plan[s].” Id. at 1369–70, 1377–78.
Each interim plan differed from the next, as the Corps
and interested parties tried different ideas and attempted
to come to an agreement. See id. at 1369–71. Once the
interested parties proposed a final plan, the Corps aban-
doned the concept of adopting a permanent deviation
plan, returned to normal regulation, and never adopted a
permanent change to the normal release rates. Id. at
1371. Under these circumstances, it could never “be said
with relative certainty,” Barnes, 538 F.2d at 873, that the
deviations (and hence the flooding) would even occur the
following year. It certainly could not be said that the
flooding would inevitably recur.
Contrary to the dissents, the panel majority did not
create a blanket rule under which any flood-causing policy
that is labeled temporary by the government will allow
the United States to avoid takings liability. A policy that
in its inception is designed to be permanent but which is
later terminated could lead to liability, just as liability
could exist if a permanent condition were created and the
land were later reclaimed. See United States v. Dickin-
son, 331 U.S. 745, 746–47, 751 (1947). The panel majority
specifically held that “in other contexts the distinction
between a temporary and permanent release plan may be
difficult to define,” and “[t]he government cannot . . .
avoid takings liability by characterizing inevitably recur-
ring events as merely a series of temporary decisions.”
Ark. Game & Fish Comm’n, 637 F.3d at 1379. If the
government, with the objective of creating a permanent or
recurring condition had pursued that goal by adopting
fifty consecutive and identical one year deviations (Judge
Moore’s hypothetical), such action might properly be
viewed as permanent or “inevitably recurring.” Here, we
5 ARKANSAS GAME & FISH COMM v. US
have no such scenario. The temporary nature of the
policies is more than simply a label placed on the policies
by the government. Rather, it is clear that this was a
situation in which there was genuine uncertainty about
the nature of the policies from year to year as the Corps
responded to individualized concerns and individualized
circumstances over (in the aggregate) a short period of
time. The government’s actions and the surrounding
context demonstrate that the policies were temporary and
not inevitably recurring.
Therefore, given that settled Supreme Court and cir-
cuit precedent dictated the result, I concur in the court’s
refusal to rehear this case en banc.
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.
__________________________
MOORE, Circuit Judge, with whom, O’MALLEY and REYNA,
Circuit Judges, join, dissenting from the denial of the
petition for rehearing en banc.
This Circuit is uniquely responsible under the Tucker
Act for Fifth Amendment Takings claims. The majority’s
misapplication of Supreme Court Takings jurisprudence
creates a bar to relief in cases involving flooding caused
by Government action, cases in which established doc-
trine would otherwise provide Constitutional protection to
private property. I respectfully dissent.
The majority in this case precludes the possibility of a
takings claim due to flooding caused by “temporary”
government action regardless of the duration or severity
of the condition. The majority holds that the only poten-
ARKANSAS GAME & FISH COMM v. US 2
tial remedy is in tort. I disagree. An early Supreme
Court decision, United States v. Cress, 243 U.S. 316, 328
(1916), handed down well before the development of the
concept of ‘temporary takings’ as it is understood today,
talked in terms of requiring that for flooding to constitute
a taking, it must be “inevitably recurring.” But that does
not preclude the possibility that a government action
labeled “temporary” could give rise to such “inevitably
recurring” flooding. To allow the government’s “tempo-
rary” label for the release rate deviations to control the
disposition of this case elevates form over substance and
leads to untenable results with enormous future conse-
quences.
The key distinction today is whether the flooding at
issue is a one time or incidental event, in which case the
consequent injury is characterized as a tort, or whether
the injury, substantial over time, is a continuing or recur-
ring one and the predictable consequence of the Govern-
ment’s conduct. In the latter case, it is a taking. As we
have explained: “The tort-taking inquiry in turn requires
consideration of whether the effects . . . experienced were
the predictable result of the government’s action, and
whether the government’s actions were sufficiently sub-
stantial to justify a takings remedy.” Ridge Line, Inc. v.
United States, 346 F.3d 1346, 1355 (Fed. Cir. 2003).
The facts of this case are quite simple. Due to gov-
ernment action that caused eight years of intermittent
flooding, the Arkansas Game and Fish Commission
(Commission) lost more than $5 million worth of timber.
The Court of Federal Claims found that the effects of the
flooding were predictable and that the government’s
actions were sufficiently substantial to justify a takings
remedy. Ark. Game & Fish Comm’n v. United States, 87
Fed. Cl. 594, 623 (2009). There is no error in this deci-
sion.
3 ARKANSAS GAME & FISH COMM v. US
Reversing the trial court’s decision, the majority be-
gins its analysis with an acknowledgement of current
doctrine: “If particular government action would consti-
tute a taking when permanently continued, temporary
action of the same nature may lead to a temporary tak-
ings claim.” Ark. Game & Fish Comm’n v. United States,
637 F.3d 1366, 1374 (Fed. Cir. 2011) (citing First English
Evangelical Lutheran Church of Glendale v. County Of
Los Angeles, 482 U.S. 304, 328 (1987)). The majority goes
on, however, to reject current doctrine as inapplicable to
flooding cases. Ark. Game, 637 F.3d at 1374-75. The
majority states that, unlike other types of takings, flood-
ing due to government action must constitute a “perma-
nent invasion” in order for the landowner to recover. Id.
I do not agree. The distinction is between torts and
takings. This does not correlate, as the majority holds, to
temporary and permanent. In short, I do not believe that
every “temporary” action by the government which causes
recurring flooding is compensable only under a tort the-
ory. The majority tells us that to constitute a taking,
rather than a tort, there must be substantial damage
from “inevitably recurring” flooding. But, under the
majority’s rule, there can never be “inevitably recurring”
flooding if the government action is temporary.
The majority holds that eight years of release rate de-
viations resulting in repeated annual overflow flooding
(certainly recurring), cannot ever be a taking because
each release rate deviation was an individual event with
its own start and end date – they were each temporary.
Ark. Game, 637 F.3d at 1369 (the release rate deviations
were “only for limited periods of time” and “therefore the
approved deviations were by their nature temporary.”).
Therefore, according to the majority, these release rate
deviations do not give rise to the sort of “permanent
invasion” required for a taking.
ARKANSAS GAME & FISH COMM v. US 4
I do not agree. As an initial matter, it is clear that
government action which results in only a temporary
flooding can be a compensable taking. In United States v.
Dickinson, 331 U.S. 745, 746-47 (1947), the government
constructed a dam that led to persistent flooding on the
plaintiffs’ lands. Id. “At considerable expense . . . [plain-
tiff] reclaimed most of his land which the Government
originally took by flooding.” Id. at 751. Although the
landowner reclaimed the land, the Supreme Court never-
theless held that the taking was compensable. Id. Hence,
something less than permanent flooding can constitute a
compensable taking. The majority agrees that there
would have been a compensable taking if the release rate
deviations that were passed were permanent, even if they
were rescinded years later so that the Commission could
reclaim its land.
With all due respect, there is no meaningful difference
between that set of facts and this one. The government
recognizes this incongruity. Gov’t Resp. to Pet. For Reh.
at 7 (“[I]f the Corps had approved a permanent deviation
plan and then reversed course ten years later, the situa-
tion would at least be much closer to a permanent change
constituting a taking.”). As we earlier made clear:
[T]he government when it has taken property by
physical invasion could subsequently decide to re-
turn the property to its owner, or otherwise re-
lease its interest in the property. Yet no one
would argue that that would somehow absolve the
government of its liability . . . All takings are
‘temporary’ in the sense that the government can
always change its mind at another time.
Hendler v. United States, 952 F.2d 1364, 1376 (Fed. Cir.
1991). If a flowage easement which is terminated after
eight years can be a compensable taking, why can’t an
5 ARKANSAS GAME & FISH COMM v. US
eight year flowage easement or eight consecutive one year
flowage easements?
Under the majority’s rule, even if the government en-
acted 50 consecutive one year release rate deviations –
such that the flooding had inevitably recurred for 50 years
– these would still be temporary and no taking could be
found. The Supreme Court has held that “it is the charac-
ter of the invasion . . . that determines the question of
whether it is a taking.” Cress, 243 U.S. at 328. The fact
finder must be able to, with the benefit of hindsight,
determine the character of an invasion and find that the
result is flooding that is “inevitably recurring.” The
author of the majority in this case agrees that 50 one-year
deviations could amount to a taking because of their
character of permanence. Concurrence at 4. With all due
respect, the question of whether eight years of deviations
are similarly adequate is best left to the fact finder – the
Court of Federal Claims. I cannot hinge the entire tak-
ings analysis, as the majority does, on the government’s
chosen label for the action – temporary or permanent.
The distinction between tort and takings in the flood-
ing cases is not as easy as saying one flood is a tort and
any more than that a taking. Nor is it as simple as the
majority would have it – if the government action turns
out to have had a limited duration it cannot be a taking.
As our predecessor court explained:
The Government has been liable where the con-
struction of a dam or other obstruction in a
stream results in either permanent flooding or a
‘permanent liability to intermittent but inevitably
recurring overflows.’ But the courts have held
that one or two or three floodings by themselves
do not constitute a taking. The plaintiff must es-
ARKANSAS GAME & FISH COMM v. US 6
tablish that flooding will ‘inevitably recur’, in the
phrasing of the Cress case.
The distinction between ‘permanent liability to in-
termittent but inevitably recurring overflows,’ and
occasional floods induced by governmental pro-
jects, which we have held not to be takings is, of
course, not a clear and definite guideline.
Nat’l By-Products, Inc. v. United States, 405 F.2d 1256,
1273, 74 (Ct. Cl. 1969) (citations omitted). Here there
were eight years of inevitably recurring flooding caused
by governmental action which has now been brought to an
end. I think the Court of Federal Claims properly ana-
lyzed the eight years of release rate deviations and the
recurring flooding that these caused and determined that
the character of this government action – this repeated,
consistent flooding – constituted a taking.
Determining whether the government action in ques-
tion is a tort or a taking requires a flexible case-by-case
approach considering the character of the government
action as a whole, the nature and extent of the flooding
that was caused and the resultant damage that occurred.
The Court of Federal Claims did just that. By contrast,
the majority adopted a rigid, unworkable and inappropri-
ate black letter rule – if the government action which
causes flooding and substantial damage to a property
holder is of limited duration it can never be a taking.
Because we miss the opportunity to correct this error
of law, I respectfully dissent from the denial of en banc.
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.
__________________________
NEWMAN, Circuit Judge, dissenting from denial of rehear-
ing en banc.
I respectfully dissent from the denial of the Commis-
sion’s petitions for rehearing and for rehearing en banc.
As discussed with respect to the panel majority’s decision,
Fifth Amendment principles as explicated and applied by
the Supreme Court, by the Federal Circuit and the Court
of Claims, and here by the Court of Federal Claims,
negate the reasoning and the result of the panel majority.
See Arkansas Game & Fish Commission v. United States,
637 F.3d 1366, 1379 (Fed. Cir. 2011) (Newman, J., dis-
senting).
The Corps of Engineers ultimately agreed that its uni-
lateral and protested flooding of the Arkansas Manage-
ARKANSAS GAME & FISH COMM v. US 2
ment Area was injurious, and because of this injury the
Corps terminated its departure from the previously
agreed release schedule of water from the Clearwater
Dam. It was found at trial, and not disputed in this
court’s majority decision, that this flooding caused per-
manent injury and destruction of Management Area
timber, destruction that was not reversible after the
Corps finally ended its deviations. The panel majority’s
holding that this injury is not compensable, on the theory
that injury caused by temporary floodings is per se never
eligible for consideration as a “taking,” is contrary to law
and precedent, as reiterated in the accompanying dissent
from denial of rehearing en banc.
Even the government is uncomfortable with the
court’s new rule, for in its brief responding to the Com-
mission’s petition, the government disingenuously an-
nounces that “the panel majority did not establish a per se
rule.” Gov’t Response at 1. However, the panel majority
did indeed establish a per se rule, stating that “because
the deviations from the 1953 plan were only temporary,
they cannot constitute a taking.” Arkansas Game & Fish
Commission, 637 F.3d at 1378-79. The panel majority
also creates the new rule that it is not necessary to apply
the balancing test elaborated in Ridge Line, Inc. v. United
States, 346 F.3d 1346, 1355 (Fed. Cir. 2003), stating that
“we need not decide whether the flooding on the Manage-
ment Area was ‘sufficiently substantial to justify a tak-
ings remedy’ or ‘the predictable result of the government’s
action’ [quoting from Ridge Line] because the deviations
were by their very nature temporary.” 637 F.3d at 1376.
This position is in conflict with Supreme Court precedent,
as summarized in Loretto v. Teleprompter Manhattan
CATV Corp., 458 U.S. 419, 436 n.12 (1982): “As . . . the
intermittent flooding cases reveal, such temporary limita-
tions are subject to a more complex balancing process to
3 ARKANSAS GAME & FISH COMM v. US
determine whether they are a taking.” See, for example,
this court’s treatment of analogous facts in Cooper v.
United States, 827 F.2d 762 (Fed. Cir. 1987), where six
years of intermittent flooding were caused by a Corps of
Engineers construction project that clogged the river
while the construction proceeded, and was held to be a
“taking” of the destroyed timber, although the construc-
tion project and its effect on the river were always under-
stood not to be permanent.
A judge of the majority opinion now proposes that “the
panel majority did not create a blanket rule.” (Dyk, J.
concurring in the denial of rehearing en banc, at 4).
However, a single judge cannot rewrite the words and
change the ruling of the court’s issued opinion. If any-
thing, such an attempted qualification adds confusion, not
clarity, to this precedential decision.
On its face, the court’s ruling conflicts with extensive
precedent, as well as strains constitutional principles.
From the denials of rehearing and of rehearing en banc, I
respectfully dissent.