In Arkansas Game & Fish Comm'n v. United States, No. 2009-5121 (Mar. 30, 2011), a case in which the Game and Fish Commission asserted that the Corps of Engineers' deviations from a dam's operating plan caused increased flooding and resulted in the destruction of trees, the U.S. Court of Appeals for the Federal Circuit held that the flooding was temporary and therefore not compensable:
The parties in this case vigorously dispute whether the extent and frequency of flooding satisfied the substantiality requirement and whether it was predictable. However, we need not decide whether the flooding on the Management Area was "sufficiently substantial to justify a takings remedy" or "the predictable result of the government’s action," Ridge Line, 346 F.3d at 1355, 1356, because the deviations were by their very nature temporary and, therefore, cannot be "inevitably recurring" or constitute the taking of a flowage easement.
Slip op at 20. The court concluded that "[b]ecause the devations from the 1953 plan were only temporary, they cannot constitute a taking. The actions at most created tort liability."
Judge Newman dissented, concluding that the "inherently temporary" flooding which the majority saw as dispositive was no different in kind than the flooding which resulted in takings liability in a number of other cases, and that "[c]ontrary to the court’s holding today, no court has held that flooding damage is never compensable if the flooding is eventually stopped, whatever the injury." Dissent at 7.
Arkansas Game & Fish Comm'n v. United States, No. 2009-5121 (Fed. Cir. Mar. 30, 2011)
