Arkansas Game & Fish Commission v. United States, 2009-5121, 2010-5029, 2013 U.S. App. LEXIS 24006 (Fed. Cir. Dec. 3, 2013)

(U.S. Supreme Court reversed a decision from the Federal Circuit and held that government-induced flooding could qualify as a Fifth Amendment taking, even if it was temporary in duration; the Court found that a determination of a temporary taking, however, was subject to a “more complex balancing process”; on remand from the Supreme Court, the court of appeals reexamined the decision from the court of federal claims and affirmed its finding of a taking; the court of appeals determined that the government’s water release practices between 1993 and 2000 did constitute the taking of a temporary flowage easement over plaintiff’s property, resulting in the destruction of a substantial amount of valuable timber; in so holding, the court found that evidence supported the lower court’s finding that the flooding was foreseeable and that the flooding was a sufficiently severe invasion to support a takings claim; the property’s lengthy growing-season flooding was unprecedented and clearly tied to the government’s water release practices).