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James F. Goodhart, Arkansas Game & Fish Commission, of Little Rock, AR, argued for plaintiff-cross appellant. With him on the brief were John P. Marks, Of counsel on the brief were Julie D. Greathouse, Matthew N. Miller, and Kimberly D. Logue, Perkins & Trotter, PLLC, of Little Rock, AR.
Robert J. Lundman, Attorney, Environment & Natural Resources Division, United States Department of Justice of Washington, DC, argued for defendant-appellant. With him on the brief was Ignacia S. Moreno, Assistant Attorney General.
Brian T. Hodges, Pacific Legal Foundation, of Bellevue, WA, and R.S. RADFORD, of Sacramento, CA, for amici curiae.
Before NEWMAN, BRYSON, and DYK, Circuit Judges.
BRYSON, Circuit Judge.
This case is before us on remand from the Supreme Court. We previously held that plaintiff Arkansas Game and Fish Commission failed to establish that increased flooding of its property during the period 1993-2000 constituted a taking that is compensable under the Fifth Amendment to the Constitution. Ark. Game & Fish Comm'n v. United States, 637 F.3d 1366 (Fed.Cir.2011). The Supreme Court reversed, holding that government-induced flooding can qualify as a Fifth Amendment taking even if it is temporary in duration. Ark. Game & Fish Comm'n v. United States,
__ U.S. __, 133 S.Ct. 511, 184 L.Ed.2d 417 (2012). The Court then remanded the case for us to determine whether the government's actions at issue in this case gave rise to a temporary taking, as found by the Court of Federal Claims, and whether the judgment of that court should be sustained. We now affirm the judgment of the Court of Federal Claims.
The facts of this case have been recited in detail both by this court and by the Court of Federal Claims, so we will provide only a brief summary here. The Arkansas Game and Fish Commission owns a large parcel of land along the Black River in northeastern Arkansas known as the Dave Donaldson Black River Wildlife Management Area (" the Management Area" ). The Commission uses the Management Area as a wildlife and hunting preserve and a timber resource. The dominant species of hardwood trees in the bottomlands of the Management Area are nuttall oaks, overcup oaks, and willow oaks. The Commission engages in harvesting and reforestation to maintain a healthy regenerating forest in those bottomlands.
In the 1940s, the Army Corps of Engineers built a dam on the Black River upstream of the Management Area for flood control purposes. The water that accumulated behind the dam became Clearwater Lake. In 1953, the Corps of Engineers issued the Clearwater Lake Water Control Manual, which set the policy for releasing water from the dam into the Black River at various times during the year. The Manual policy, which was designed to mimic the natural flow of water in the Black River while preventing severe floods, called for a rapid release of water each spring, which produced short-term flooding in low-lying areas along the river and in the Management Area, but did not result in long-term flooding during the April through October tree-growing season. Under the Manual policy, floodwaters downstream of the dam generally receded by late May of each year, as had been the case prior to the dam's construction.
The 1953 water release policies resulted in a modest increase in the average number of days during each year that the Management Area was flooded, as compared
with the pre-dam period. However, the additional days of flooding that occurred during the 40 years that the Manual policy was in place did not result in long-term damage to the timber in the Management Area. The evidence at trial showed that the valuable trees in the Management Area were able to withstand short periods of flooding during the growing season, as long as there were no more than two or three successive growing seasons in which there were prolonged periods of flooding.
The Water Control Manual permitted the Corps of Engineers to approve deviations from the normal pattern of water release. Beginning in late 1993, the Corps approved a series of deviations in the prescribed water levels from the normal standards authorized by the Manual. The deviations were adopted in response to requests from agricultural interests, which advocated modifying the water release policies so as to provide farmers in the flood-affected regions more time each year to harvest their crops. The post-1993 deviations resulted in an increase in the number of days that portions of the Management Area were flooded during the growing seasons from 1994 until 2000.
Starting in early 1996, Commission representatives began complaining to the Corps of Engineers that the flooding caused by the deviations was injuring some of the valuable oak species in the Management Area. The Corps of Engineers, however, continued to implement the new policy on a yearly basis until 2000. In 1999 and 2000 the area suffered a moderate drought. Following the drought, Commission employees found that large numbers of the most valuable trees in the Management Area were dead or in degraded condition. The trial court concluded that the flooding during the growing seasons between 1994 and 1998 had damaged the roots of the trees in the Management Area so that they were not able to withstand the drought. Absent the root damage caused by the flooding, the court found, the drought would not have had a detrimental effect on the forest.
In 1999 the Corps of Engineers proposed making the interim deviations of the prior six years a permanent part of the water control plan for Clearwater Dam. Upon further objections by the Commission, however, the Corps in April 2001 decided not to make the deviations permanent but instead to end the deviations altogether. The Corps confirmed that the Management Area would flood when the water level at the Corning, Arkansas, gauge on the Black River reached six feet, which had occurred frequently during the deviation period. In a news release, the Corps explained that it was abandoning the plan to make the deviations permanent because of concern for the " potential for damage to the bottomland hardwoods in the Dave Donaldson Black River Wildlife Management Area."
The Commission brought this action in the Court of Federal Claims, contending that the Corps' water release practices between 1993 and 2000 constituted a compensable Fifth Amendment taking. In a comprehensive opinion, the Court of Federal Claims held that by implementing the deviations from 1993 through 2000, the government had taken a temporary flowage easement over the Management Area,
resulting in the destruction of a substantial amount of valuable timber. Ark. Game & Fish Comm'n v. United States, 87 Fed.Cl. 594 (2009). The court found that the extended periods of flooding in the Management Area were foreseeable and were the cause of the damage to the timber there. The court awarded the Commission $5,602,329.56, the value of the timber lost because of the excess flooding between 1993 and 2000. The court granted an additional $176,428.34 in damages to pay for regeneration efforts in areas severely affected by wetland plant species that had invaded the area during the years of increased flooding, but it denied the Commission's request for a greater regeneration award covering a larger portion of the Management Area.
This court reversed the Court of Federal Claims, holding that the government's actions did not constitute a compensable taking. Ark. Game & Fish Comm'n v. United States, 637 F.3d 1366 (Fed.Cir.2011). In so doing, we relied on language in several Supreme Court cases suggesting that temporary flooding does not constitute a taking and that because the deviations were temporary in nature, the flooding was not an " inevitably recurring" event that would give rise to a takings remedy. We did not reach any of the other issues raised by the parties, including the Commission's cross-appeal in which it sought an increase in the award of regeneration damages.
The Supreme Court reversed this court, holding that government-induced flooding can constitute a taking even if it is temporary in duration. Ark. Game & Fish Comm'n v. United States,
__ U.S. __, 133 S.Ct. 511, 184 L.Ed.2d 417 (2012). Unlike permanent physical takings, the Court explained, temporary invasions " are subject to a more complex balancing process to determine whether they are a taking." Id. at 521, quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 n. 12, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). The Court remanded the case for further proceedings, noting that the government had challenged " several of the trial court's factfindings, including those relating to causation, foreseeability, substantiality, and the amount of damages." Id. at 522. The Court added that those issues the government had previously preserved for review in this court would remain open for further consideration.
On remand, the government has raised several issues that it raised in the previous appeal (and some that it did not). We address the issues that the government has preserved for appeal, but we decline to address those that the government did not previously raise before the trial court.
The government's first argument on remand is that the deviations that resulted in flooding the Management Area were " temporary and ad hoc" and therefore did not constitute a physical taking of the Commission's property. Given that the Supreme Court held that a physical taking could result from flooding that is only temporary in nature, the government's argument is necessarily limited to the contention that the flooding was not sufficient in duration to constitute an appropriation of the Commission's property rights. The trial court found to the contrary, and we agree with the trial court that the assertedly " temporary and ad hoc" nature of the deviations does not defeat the Commission's takings claim.
While it is true that each of the Corps-authorized deviations was designated as temporary, the deviations were renewed each year between 1993 and 2000. The deviations were adopted in response to requests from agricultural interests, which sought to have the pattern of water releases from Clearwater Lake modified to increase the length of the harvest season. The changes made in the release patterns between 1993 and 2000 had the intended effect of benefiting farmers in the area, but as the trial court found, the change also resulted in a substantial increase in the number of days that the Management Area was flooded during each growing season during those years.
That period of flooding imposed a severe burden on the Commission's property. According to the trial court's findings, " the government's superinduced flows so profoundly disrupted certain regions of the Management Area that the Commission could no longer use those regions for their intended purposes, i.e., providing habitat for wildlife and timber for harvest." 87 Fed.Cl. at 620.
The government's claim that each of the deviations that the Corps of Engineers implemented during the 1990s was insufficient by itself to effect a taking ignores that while the prescribed water levels varied slightly from year to year, the deviations were directed to a single purpose— to accommodate agricultural interests— and had a consistent overall impact on the Management Area. Thus, the government-authorized flooding of the Management Area is properly viewed as having lasted for seven years, and the question whether the flooding constituted a compensable taking must be assessed in light of an invasion of that duration. See Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 329-30, 43 S.Ct. 135, 67 L.Ed. 287 (1922); Hendler v. United States, 952 F.2d 1364, 1377 (Fed.Cir.1991); Eyherabide v. United States, 345 F.2d 565, 569 (Ct.Cl.1965) (" Isolated invasions, such as one or two floodings or sprayings, do not make a taking, ... but repeated invasions of the same type have often been held to result in an involuntary servitude." ). The government cannot obtain an exemption from takings liability ...