Arkansas Game & Fish Commission v. United States

Whether a physical invasion must be permanent in order to constitute a taking under the Fifth Amendment.

When it constructs a dam the U.S. Army Corps of Engineers is required to implement a water control plan that details safety features, release rates and other operating instructions as outlined in a Water Control Manual. The Manual for the Clearwater Dam established “normal regulation releases” and also allowed for deviations for emergencies, “unplanned minor deviations” or planned deviations approved by the Corps.

Between 1993 and 2000, the Corps approved several temporary deviation plans that caused temporary flooding and destroyed nearly 18 million board feet of timber on Petitioner’s land. Petitioner alleged that temporary release rate deviations constituted a taking and brought a 28 U.S.C. § 1491 action against the United States seeking just compensation.

The United States Court of Federal Claims held that the deviations were reoccurring and constituted a temporary taking and awarded Petitioner damages. The Court of Appeals for the Federal Circuit found the deviations to be temporary, and, relying on Supreme Court precedent that takings must be permanent and predictable, reversed.

Petitioner argues that government regulations imposing physical invasions are not exempt from the Takings Clause solely for lack of permanency.