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SUPREME COURT OF THE UNITED STATES
ARKANSAS GAME AND FISH COMMISSION, PETITIONER
on writ of certiorari to the united states
court of appeals for the federal circuit
[December 4, 2012]
Justice Ginsburg delivered the opinion of the
Periodically from 1993 until 2000, the
U. S. Army Corps of Engineers (Corps) authorized flooding that
extended into the peak growing season for timber on forest land
owned and managed by petitioner, Arkansas Game and Fish Commission
(Commission). Cumulative in effect, the repeated flooding damaged
or destroyed more than 18 million board feet of timber and
disrupted the ordinary use and enjoyment of the Commission’s
property. The Commission sought compensation from the United States
pursuant to the Fifth Amendment’s instruction: “[N]or
shall private property be taken for public use, without just
compensation.” The question presented is whether a taking may
occur, within the meaning of the Takings Clause, when
government-induced flood invasions, al- though repetitive, are
Ordinarily, this Court’s decisions
confirm, if government action would qualify as a taking when
permanently continued, temporary actions of the same character may
also qualify as a taking. In the instant case, the parties and the
courts below divided on the appropriate classification of temporary
flooding. Reversing the judgment of the Court of Federal Claims,
which awarded compensation to the Commission, the Federal Circuit
held, 2 to 1, that compensation may be sought only when flooding is
“a per- manent or inevitably recurring condition, rather than
an inherently temporary situation.” 637 F.3d 1366, 1378
(2011). We disagree and conclude that recurrent floodings, even if
of finite duration, are not categorically exempt from Takings
The Commission owns the Dave Donaldson Black
River Wildlife Management Area (Management Area or Area), which
comprises 23,000 acres along both banks of the Black River in
northeast Arkansas. The Management Area is forested with multiple
hardwood timber species that support a variety of wildlife
habitats. The Commission operates the Management Area as a wildlife
and hunting preserve, and also uses it as a timber resource,
conducting regular harvests of timber as part of its
forest-management efforts. Three types of hardwood oak
species—nuttall, overcup, and willow—account for 80
percent of the trees in the Management Area. The presence of these
hardwood oaks is essential to the Area’s character as a
habitat for migratory birds and as a venue for recreation and
The Clearwater Dam (Dam) is located 115 miles
upstream from the Management Area. The Corps constructed the Dam in
1948, and shortly thereafter adopted a plan known as the Water
Control Manual (Manual) to determine the rates at which water would
be released from the Dam. The Manual sets seasonally varying
release rates, but permits planned deviations from the prescribed
rates for agricultural, recreational, and other purposes.
In 1993, the Corps approved a planned deviation
in response to requests from farmers. From September to December
1993, the Corps released water from the Dam at a slower rate than
usual, providing downstream farmers with a longer harvest time. As
a result, more water than usual accumulated in Clearwater Lake
behind the Dam. To reduce the accumulation, the Corps extended the
pe- riod in which a high amount of water would be released. The
Commission maintained this extension yielded downstream flooding in
the Management Area, above historical norms, during the
tree-growing season, which runs from April to October. If the Corps
had released the water more rapidly in the fall of 1993, in
accordance with the Manual and with past practice, there would have
been short-term waves of flooding which would have receded quickly.
The lower rate of release in the fall, however, extended the period
of flooding well into the following spring and summer. While the
deviation benefited farmers, it interfered with the Management
Area’s tree-growing season.
The Corps adopted similar deviations each year
from 1994 through 2000. The record indicates that the decision to
deviate from the Manual was made independently in each year and
that the amount of deviation varied over the span of years.
Nevertheless, the result was an unbroken string of annual
deviations from the Manual. Each deviation lowered the rate at
which water was released during the fall, which necessitated
extension of the release period into the following spring and
summer. During this span of years the Corps proposed Manual
revisions that would have made its temporary deviations part of the
permanent water-release plan. On multiple occasions between 1993
and 2000, the Commission objected to the temporary deviations and
opposed any permanent revision to the Manual, on the ground that
the departures from the traditional water-release plan adversely
impacted the Management Area. Ultimately, the Corps tested the
effect of the deviations on the Management Area. It thereupon
abandoned the proposal to permanently revise the Manual and, in
2001, ceased its temporary deviations.
In 2005, the Commission filed the instant
lawsuit against the United States, claiming that the temporary
deviations from the Manual constituted a taking of property that
entitled the Commission to compensation. The Commission maintained
that the deviations caused sustained flooding of its land during
the tree-growing season. The cumulative impact of this flooding
over a six-year period between 1993 and 1999, the Commission
alleged, resulted in the destruction of timber in the Management
Area and a substantial change in the character of the terrain,
which necessitated costly reclamation measures. Following a trial,
the Court of Federal Claims ruled in favor of the Commission and
issued an opinion and order containing detailed findings of fact.
87 Fed. Cl. 594 (2009).
The Court of Federal Claims found that the
forests in the Management Area were healthy and flourishing before
the flooding that occurred in the 1990’s, and that the
forests had been sustainably managed for decades under the
water-release plan contained in the Manual. Id.,
at 631. It
further found that the Commission repeatedly objected to the
deviations from the Manual and alerted the Corps to the detrimental
effect the longer period of flooding would have on the hardwood
timber in the Management Area. Id.,
As found by the Court of Federal Claims, the
flooding caused by the deviations contrasted markedly with
historical flooding patterns. Between 1949 and 1992, the river
level near the Management Area reached six feet an average of 64.7
days per year during the growing season; the number of such days
had been even lower on average before the Clearwater Dam was built.
Between 1993 and 1999, however, the river reached the same level an
average of 91.14 days per year, an increase of more than 40 percent
over the historic average. Although the Management Area lies in a
floodplain, in no previously recorded time span did comparable
flooding patterns occur. Id.,
at 607–608. Evidence at
trial indicated that half of the nuttall oaks in the Management
Area were saturated with water when the river level was at six
at 608; the evidence further indicated that the
saturation of the soil around the trees’ root systems could
persist for weeks even after the flooding had receded. Id.,
The court concluded that the Corps’
deviations caused six consecutive years of substantially increased
flooding, which constituted an appropriation of the
Commission’s property, albeit a temporary rather than a
permanent one. Important to this conclusion, the court emphasized
the deviations’ cumulative effect. The trees were subject to
prolonged periods of flooding year after year, which reduced the
oxygen level in the soil and considerably weak- ened the
trees’ root systems. The repeated annual flooding for six
years altered the character of the property to a much greater
extent than would have been shown if the harm caused by one year of
flooding were simply multi- plied by six. When a moderate drought
occurred in 1999 and 2000, the trees did not have the root systems
necessary to sustain themselves; the result, in the court’s
words, was “catastrophic mortality.” Id.,
632. More than 18 million board feet of timber were destroyed or
This damage altered the character of the
Management Area. The destruction of the trees led to the invasion
of undesirable plant species, making natural regeneration of the
forests improbable in the absence of reclamation efforts.
at 643. To determine the measure of just compensation,
the Court of Federal Claims calculated the value of the lost timber
and the projected cost of the reclamation and awarded the
Commission $5.7 million.
The Federal Circuit reversed. It acknowledged
that in general, temporary government action may give rise to a
takings claim if permanent action of the same character would
constitute a taking. But it held that “cases involving
flooding and [flowage] easements are different.” 637
F. 3d, at 1374. Government-induced flooding can give rise to a
taking claim, the Federal Circuit concluded, only if the flooding
is “permanent or inevitably recurring.” Id.,
1378. The Court of Appeals understood this conclusion to be
dictated by this Court’s decisions in Sanguinetti
(1924), and United States
, 328 (1917). We granted certiorari to resolve the
question whether government actions that cause repeated floodings
must be permanent or inevitably recurring to constitute a taking of
property. 566 U. S. ___ (2012).
The Takings Clause 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.” Armstrong
v. United States
, 49 (1960). See also First English Evangelical Lutheran
Church of Glendale
v. County of Los Angeles
, 482 U.S.
, 318–319 (1987); Penn Central Transp. Co.
New York City
, 438 U.S.
, 123–125 (1978). And “[w]hen the government
physically takes possession of an interest in property for some
public purpose, it has a categorical duty to compensate the former
owner.” Tahoe-Sierra Preservation Council, Inc.
Tahoe Regional Planning Agency
, 322 (2002) (citing United States
, 341 U.S.
, 115 (1951)). These guides are fundamental in our Takings
Clause jurisprudence. We have recognized, however, that no magic
formula enables a court to judge, in every case, whether a given
government interference with property is a taking. In view of the
nearly infinite variety of ways in which government actions or
regulations can affect property interests, the Court has recognized
few invariable rules in this area.
True, we have drawn some bright lines, notably,
the rule that a permanent physical occupation of property
authorized by government is a taking. Loretto
Teleprompter Manhattan CATV Corp.
, 426 (1982). So, too, is a regulation that permanently
requires a property owner to sacrifice all economically beneficial
uses of his or her land. Lucas
v. South Carolina Coastal
, 505 U.S.
, 1019 (1992). But aside from the cases attended by rules
of this order, most takings claims turn on situation-specific
factual inquiries. See Penn Central
, 438 U. S., at 124.
With this in mind, we turn to the question presented
here—whether temporary flooding can ever give rise to a
The Court first ruled that government-induced
flooding can constitute a taking in Pumpelly
v. Green Bay
, 13 Wall. 166 (1872). The Wisconsin Legislature had
authorized the defendant to build a dam which led to the creation
of a lake, permanently submerging the plaintiff’s land. The
defendant argued that the land had not been taken because the
government did not exercise the right of eminent domain to acquire
title to the affected property. Moreover, the defendant urged, the
damage was merely “a consequential result” of the
dam’s construction near the plaintiff’s property.
at 177. Rejecting that crabbed reading of the Takings
Clause, the Court held that “where real estate is actually
invaded by superinduced additions of water, earth, sand, or other
material . . . so as to effectually destroy or impair its
usefulness, it is a taking, within the meaning of the
, the Court recognized
that season- ally recurring flooding could constitute a taking.
, 243 U.S.
(1917), involved the Government’s construction of a
lock and dam, which subjected the plaintiff’s land to
“intermittent but inevitably recurring overflows.”
at 328. The Court held that the regularly recurring
flooding gave rise to a takings claim no less valid than the claim
of an owner whose land was continuously kept under water.
Furthermore, our decisions confirm that takings
tem- porary in duration can be compensable. This principle was
solidly established in the World War II era, when
“[c]ondemnation for indefinite periods of occupancy [took
hold as] a practical response to the uncertainties of the
Government’s needs in wartime.” United States
Westinghouse Elec. & Mfg. Co.
, 267 (1950). In support of the war effort, the
Government took temporary possession of many properties. These
exercises of government authority, the Court recognized, qualified
as compensable temporary takings. See Pewee Coal Co.
; Kimball Laundry Co.
v. United States
338 U.S. 1
(1949); United States
v. General Motors Corp.
(1945). Notably in relation to the question before us, the
takings claims approved in these cases were not confined to
instances in which the Government took outright physical possession
of the property involved. A temporary takings claim could be
maintained as well when government action occurring outside the
property gave rise to “a direct and immediate interference
with the enjoyment and use of the land.” United States
, 328 U.S.
, 266 (1946) (frequent overflights from a nearby airport
resulted in a taking, for the flights deprived the property owner
of the customary use of his property as a chicken farm); cf.
, 751 (1947) (flooding of claimant’s land was a
taking even though claimant successfully “reclaimed most of
his land which the Government originally took by
Ever since, we have rejected the argument that
government action must be permanent to qualify as a taking. Once
the government’s actions have worked a taking of property,
“no subsequent action by the government can re- lieve it of
the duty to provide compensation for the pe- riod during which the
taking was effective.” First English
, 482 U. S.,
at 321. See also Tahoe-Sierra
, 535 U. S., at 337
(“[W]e do not hold that the temporary nature of a land-use
restriction precludes finding that it effects a taking; we simply
recognize that it should not be given exclusive significance one
way or the other.”).
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.
No decision of this Court authorizes a blanket temporary-flooding
exception to our Takings Clause jurisprudence, and we decline to
create such an exception in this case.
In advocating a temporary-flooding exception,
the Government relies primarily on Sanguinetti
, 264 U.S.
. That case involved a canal constructed by the Government
connecting a slough and a river. The claimant’s land was
positioned between the slough and the river above the canal. The
year after the canal’s construction, a “flood of
unprecedented severity” caused the canal to overflow onto the
claimant’s land; less severe flooding and overflow occurred
in later years. Id.,
The Court held there was no taking on these
facts. This outcome rested on settled principles of foreseeability
and causation. The Court emphasized that the Government did not
intend to flood the land or have “any reason to expect that
such [a] result would follow” from construction of the canal.
, at 148. Moreover, the property was subject to seasonal
flooding prior to the construction of the canal, and the landowner
failed to show a causal connection between the canal and the
increased flooding, which may well have been occasioned by changes
in weather patterns. See id.,
at 149 (characterizing the
causal relationship asserted by the landowner as “purely
conjec- tural”). These case-specific features were more than
sufficient to dispose of the property owner’s claim.
In the course of the Sanguinetti
decision, however, the Court summarized prior flooding cases as
standing for the proposition that “in order to create an
enforceable liability against the Government, it is, at least,
necessary that the overflow be the direct result of the structure,
and constitute an actual, permanent invasion of the land.”
. The Government would have us extract from this
statement a definitive rule that there can be no temporary taking
caused by floods.
We do not read so much into the word
“permanent” as it appears in a nondispositive sentence
. That case, we note, was decided in 1924,
well before the World War II-era cases and First English
which the Court first homed in on the matter of compensation for
temporary takings. That time factor, we think, renders
understandable the Court’s passing reference to permanence.
If the Court indeed meant to express a general limitation on the
Takings Clause, that limitation has been superseded by subsequent
developments in our jurisprudence.
There is certainly no suggestion in
that flooding cases should be set apart from the
mine run of takings claims. The sentence in question was composed
to summarize the flooding cases the Court had encountered up to
that point, which had unexceptionally involved permanent, rather
than temporary, government-induced flooding. 264 U. S., at
, 243 U. S., at 328; United
, 188 U.S.
, 469 (1903). But as just explained, no distinction between
permanent and temporary flooding was material to the result in
. We resist reading a single sentence unnecessary
to the decision as having done so much work. In this re- gard, we
recall Chief Justice Marshall’s sage observation that
“general expressions, in every opinion, are to be taken in
connection with the case in which those expressions are used. If
they go beyond the case, they may be respected, but ought not to
control the judgment in a subsequent suit when the very point is
presented for decision.” Cohens
Wheat. 264, 399 (1821).
The Government also asserts that the Court in
the same way the
Federal Circuit did in this case. That assertion bears careful
inspection. A section of the Court’s opinion in
discussing permanent physical occupations
parenthetically quotes Sanguinetti
’s statement that
flooding is a taking if it constitutes an “actual, permanent
invasion of the land.” 458 U. S., at 428. But the first
rule of case law as well as statutory interpretation is: Read on.
Later in the Loretto
opinion, the Court clarified that it
scarcely intended to adopt a “flooding-is-different”
rule by the obscure means of quoting parenthetically a fragment
from a 1924 opinion. The Court distinguished permanent physical
occupations from temporary invasions of property, expressly
including flooding cases, and said that “temporary
limitations are subject to a more complex balancing process to
determine whether they are a taking.” Id.,
There is thus no solid grounding in precedent
for set- ting flooding apart from all other government intrusions
on property. And the Government has presented no other persuasive
reason to do so. Its primary argument is of the in for a penny, in
for a pound genre: reversing the decision below, the Government
worries, risks disruption of pub- lic works dedicated to flood
control. “[E]very passing flood attributable to the
government’s operation of a flood-control project, no matter
how brief,” the Government hypothesizes, might qualify as a
compensable taking. Brief for United States 29. To reject a
categorical bar to temporary-flooding takings claims, however, is
scarcely to credit all, or even many, such claims. It is of course
in- cumbent on courts to weigh carefully the relevant factors and
circumstances in each case, as instructed by our decisions. See
, at 14.
The slippery slope argument, we note, is hardly
novel or unique to flooding cases. Time and again in Takings Clause
cases, the Court has heard the prophecy that recognizing a just
compensation claim would unduly impede the government’s
ability to act in the public interest. Causby
U. S., at 275 (Black, J., dissenting); Loretto
U. S., at 455 (Blackmun, J., dissenting). We have rejected
this argument when deployed to urge blanket exemptions from the
Fifth Amendment’s instruction. While we recognize the
importance of the public interests the Government advances in this
case, we do not see them as categorically different from the
interests at stake in myriad other Takings Clause cases. The sky
did not fall after Causby
, and today’s modest decision
augurs no deluge of takings liability.
Tellingly, the Government qualifies its defense
of the Federal Circuit’s exclusion of flood invasions from
temporary takings analysis. It sensibly acknowledges that a taking
might be found where there is a “sufficiently prolonged
series of nominally temporary but substantively identical
deviations.” Brief for United States 21. This concession is
in some tension with the categorical rule adopted by the Court of
Appeals. Indeed, once it is recognized that at least some repeated
nonpermanent flooding can amount to a taking of property, the
question presented to us has been essentially answered. Flooding
cases, like other takings cases, should be assessed with reference
to the “particular circumstances of each case,” and not
by resorting to blanket exclusionary rules. United States
Central Eureka Mining Co.
, 357 U.S.
, 168 (1958) (citing Pennsylvania Coal Co.
, 260 U.S.
, 416 (1922)). See Penn Central
, 438 U. S., at
At oral argument, the Government tendered a
different justification for the Federal Circuit’s judgment,
one not aired in the courts below, and barely hinted at in the
brief the Government filed in this Court: Whether the damage is
permanent or temporary, damage to downstream property, however
foreseeable, is collateral or incidental; it is not aimed at any
particular landowner and therefore does not qualify as an
occupation compensable under the Takings Clause. Tr. of Oral Arg.
30–39; Brief for United States 26–27. “[M]indful
that we are a court of review, not of first view,”
, 544 U.S.
, 718, n. 7 (2005), we express no opinion on the proposed
upstream/downstream distinction and confine our opinion to the
issue explored and decided by the Federal Circuit.
For the same reason, we are not equipped to
address the bearing, if any, of Arkansas water-rights law on this
] The determination
whether a taking has occurred includes consideration of the
property owner’s distinct investment-backed expectations, a
matter often informed by the law in force in the State in which the
property is located. Lucas
, 505 U. S., at
v. Washington Legal
, 524 U.S.
, 164 (1998). But Arkansas law was not examined by the
Federal Circuit, and therefore is not properly pursued in this
Court. Whether arguments for an upstream/downstream distinction and
on the relevance of Arkansas law have been preserved and, if so,
whether they have merit, are questions appropriately addressed to
the Court of Appeals on remand. See Glover
, 531 U.S.
, 205 (2001).
We rule today, simply and only, that
government-induced flooding temporary in duration gains no auto-
matic exemption from Takings Clause inspection. When regulation or
temporary physical invasion by government interferes with private
property, our decisions recognize, time is indeed a factor in
determining the existence vel non
of a compensable
taking. See Loretto
, 458 U. S., at 435, n. 12
(temporary physical invasions should be as- sessed by case-specific
factual inquiry); Tahoe-Sierra
, 535 U. S., at 342
(duration of regulatory restriction is a factor for court to
consider); National Bd. of YMCA
v. United States
, 93 (1969) (“temporary, unplanned occupation” of
building by troops under exigent circumstances is not a
Also relevant to the takings inquiry is the
degree to which the invasion is intended or is the foreseeable
result of authorized government action. See supra,
John Horstmann Co.
v. United States
, 257 U.S.
, 146 (1921) (no takings liability when damage caused by
government action could not have been foreseen). See also Ridge
v. United States
346 F.3d 1346
, 1355–1356 (CA Fed. 2003); In re
Chicago, Milwaukee, St. Paul & Pacific R. Co.
F.2d 317, 325–326 (CA7 1986). So, too, are the character of
the land at issue and the owner’s “reasonable
investment-backed expectations” regarding the land’s
v. Rhode Island
, 533 U.S.
, 618 (2001). For example, the Management Area lies in a
floodplain below a dam, and had experienced flooding in the past.
But the trial court found the Area had not been exposed to flooding
comparable to the 1990’s accumulations in any other time span
either prior to or after the construction of the Dam. See
at 4–5. Severity of the interference figures in
the calculus as well. See Penn Central
, 438 U. S., at
130–131; Portsmouth Harbor Land & Hotel Co.
, 260 U.S.
, 329–330 (1922) (“[W]hile a single act may not
be enough, a continuance of them in sufficient number and for a
sufficient time may prove [a taking]. Every successive trespass
adds to the force of the evidence.”).
The Court of Federal Claims found that the
flooding the Commission assails was foreseeable. In this regard,
the court noted the Commission’s repeated complaints to the
Corps about the destructive impact of the successive planned
deviations from the Water Control Manual. Further, the court
determined that the interference with the Commission’s
property was severe: The Commission had been deprived of the
customary use of the Management Area as a forest and wildlife
preserve, as the bottomland hardwood forest turned, over time, into
a “headwater swamp.” 87 Fed. Cl., at 610 (internal
quotation marks omitted); see supra,
The Government, however, challenged several of
the trial court’s factfindings, including those relating to
causation, foreseeability, substantiality, and the amount of
damages. Because the Federal Circuit rested its decision entirely
on the temporary duration of the flooding, it did not address those
challenges. As earlier noted, see supra,
at 13, preserved
issues remain open for consideration on remand.
* * *
For the reasons stated, the judgment of the
Court of Appeals for the Federal Circuit is reversed, and the case
is remanded for further proceedings consistent with this
It is so ordered.
Justice Kagan took no part in the consideration
or decision of this case.