The U.S. Supreme Court decided Arkansas Game and Fish Commission v. United States in 2012. The Court ruled that a government-induced, temporary flooding of property could be a “taking” under the Fifth Amendment to the U.S. Constitution. The ruling overturned the Federal Circuit’s bright-line blanket exemption to takings for government-induced temporary flooding and replaced it with a case-by-case balancing review of factual circumstances. 

The U.S. Army Corps of Engineers built the Clearwater Dam 115 miles upstream of the Dave Donaldson Black River Wildlife Management Area (owned by the Arkansas Game and Fish Commission) in 1948. Historically, the Management Area had served to both sustain native hardwood populations and provide refuge to endemic fish and wildlife. From the time of the dam’s construction until 1992, the Corps regulated outflows from the dam to mimic the natural cycles of the Black River, with short, high-discharge pulses in the spring and winter and less outflow during the summer. From 1993 until 2000, the Corps authorized a planned deviation from these standard releases that allowed for slower, more sustained releases from the dam to benefit farmers planting low-lying acreage in the valley below the dam. These deviations resulted in widespread flooding of the Management Area during the timber growing season. As a result of damage to their roots sustained due to the repeated flooding, nearly 18 million board feet of timber were lost to drought in 1999 and 2000. 

The Game and Fish Commission filed a takings claim with the Court of Federal Claims in 2005. The court ruled in favor of the commission, stating that the effect of the Corps’s planned deviations on the Management Area was “predictable, using readily available resources and hydrologic skills.” They also found that the impact of the seasonal flooding was so great that “the Commission could no longer use those regions for their intended purposes.” 

On appeal, the Federal Circuit reversed the decision, stating that because the Corps’s actions and their impacts were temporary in nature, they could not constitute a taking under federal law. The Supreme Court reversed the Federal Circuit’s decision, holding that recurrent flooding, even if only temporary, is not categorically exempt from takings liability. Rather, the Court ruled that takings cases pertaining to temporary flooding created by government action require facts-based determination. In the words of the opinion, there is no “magic formula [that] enables a court to judge, in every case, whether a given government interference with a property is a taking.” The Supreme Court indicated that temporary flood takings should be evaluated using a balancing test with five factors: 1) the duration of government interference, 2) the degree to which the invasion is intended or the foreseeable result of government action, 3) the severity of the interference, 4) the character of the land at issue, and 5) the owner’s reasonable investment-backed expectation of land use.