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Arkansas Game & Fish Commission v. United States

March 30, 2011


Appeals from the United States Court of Federal Claims in case no. 05-CV-381, Judge Charles F. Lettow.

The opinion of the court was delivered by: Dyk, Circuit Judge.

Before NEWMAN and DYK, Circuit Judges, and WHYTE,*fn1

Opinion for the court filed by Circuit Judge DYK.

Dissenting opinion filed by Circuit Judge NEWMAN.

The Arkansas Game and Fish Commission ("the Commission") filed a physical takings claim against the United States in the Court of Federal Claims ("Claims Court"), alleging that the United States had taken its property without just compensation. The Commission claimed that temporary deviations by the Army Corps of Engineers ("the Corps") from an operating plan for Clearwater Dam during the years 1993 to 2000 caused increased flooding in the Commission's Dave Donaldson Black River Wildlife Management Area ("Management Area"). This flooding, in turn, caused excessive timber mortality in the Management Area. The Claims Court concluded that the United States had taken a temporary flowage easement over the Commission's property and awarded a total of $5,778,757.90 in damages. Ark. Game & Fish Comm'n v. United States, 87 Fed. Cl. 594, 617, 647 (2009). Because we conclude that the Corps' deviations did not constitute a taking, we reverse.


The Commission owns the Management Area, which is located in northeast Arkansas and consists of 23,000 acres on both banks of the Black River. The Commission operates the Management Area as a wildlife and hunting preserve and harvests timber, thereafter reforesting the harvested areas. The Corps completed construction of the Clearwater Dam in 1948. The dam is located in southeast Missouri approximately 115 miles upstream of the Commission's Management Area. The reservoir created by the dam is called Clearwater Lake. The primary purpose of the dam was to provide flood protection.


Whenever the Corps constructs a dam, it adopts a water control plan reflected in a Water Control Manual. These water control plans detail release rates, safety features, and other operating instructions. They are required by Corps regulation. U.S. Army Corps of Engineers, Eng'r Reg. No. 1110-2-240, at 2 (Oct. 8, 1982) [hereinafter EM 1110-2-240]. The plans are developed by regional district commanders "in concert with all basin interests which are or could be impacted by or have an influence on project regulation" and then submitted to the Corps for approval. Id. at 3, 4.

This case concerns release rates from the dam established by the plan for Clearwater Dam and deviations from the planned rates. The purpose of regulating release rates is to control the flow of the Black River in order to reduce the adverse effects of flooding in downstream areas. The dam cannot be operated in a manner that completely eliminates flooding because water must be released from the dam, and the released water will, to some extent, cause flooding. If the release rates are lower, the height of the flooding is decreased but the period of flooding is increased. If the release rates are higher, the height of the flooding is increased but the period of flooding is decreased. Apparently, agricultural interests favored a lower release rate even though this would lead to longer periods of flooding, while the Commission and those located near Clearwater Lake preferred a higher release rate to return the lake to its normal level more quickly. As will be seen, the claim here is that the Commission's property was damaged by the temporary adoption of a lower release rate during the growing season, prolonging the release period and damaging trees.

In order to understand the parties' respective positions, it is necessary to describe the background of the 1953 plan and the deviations from that plan that are challenged here. The plan for Clearwater Dam was developed over a period of several years and was finally adopted as part of the Clearwater Lake Water Control Manual in 1953. After the Corps completed construction of Clearwater Dam in 1948, it experimented with release levels for five years. Releases were measured by the maximum height of the water at the Poplar Bluff Gauge in the Black River, which is downstream of the dam but upstream of the Management Area. The first maximum levels at Poplar Bluff during this early period were 12 feet during agricultural season and 14 feet during non-growing season. The Corps concluded that "operating experience" showed these high releases negatively affected too many downstream areas. J.A. 9865. Therefore, in 1950, the Corps reduced the maximum release levels to 10.5 feet during growing season and 11.5 feet during non-growing season. After three years during which "no consistent problems [were] encountered," the Corps approved the first Clearwater Lake Water Control Manual in 1953.*fn2 J.A. 9865. Under the Manual's "normal regulation," releases were regulated so that the water height at Poplar Bluff did not exceed 10.5 feet during growing season and 11.5 feet during non-growing season.

The maximum release levels at Poplar Bluff allowed for the quick release of water during the growing season, so flooding occurred in short-term waves rather than over extended periods. The Manual's normal regulation somewhat mimicked the natural flooding patterns in the region. During the 1993--2000 period, the Manual's "normal regulation" releases were the same as under the original 1953 plan.

The Clearwater Lake Manual allowed for deviations from the "normal regulation" releases for (1) emergencies, (2) "unplanned minor deviations," such as for construction or maintenance, and (3) "planned deviations" requested for agricultural, recreational, and other purposes. J.A. 9907--08. The deviations in question here fell into the latter category. According to the Manual, the Corps was "occasionally requested to deviate from normal regulation." Id. at 9907. Planned deviations had to be approved by the Corps' Southwestern Division, which was required to consider "flood potential, lake and watershed conditions, possible alternative measures, benefits to be expected, and probable effects on other authorized and useful purposes." Id. As described in the Manual, these requests were for specific activities that required deviations only for limited periods of time, such as the harvesting of crops, canoe races, and fish spawning. Therefore, the approved deviations were by their nature temporary.

The temporary deviations here began in 1993, forty years after the adoption of the Water Control Manual.*fn3

In 1993, the Corps approved a "planned deviation" from the Water Control Manual's approved releases for a three month period from September 29 to December 15, 1993, lowering the maximum release level to six feet at the request of agricultural interests that desired slower releases to "allow[] farmers more time to harvest their crops." J.A. 8237--38. No permanent change was made to the Water Control Manual at that time. But in the same year, the Corps fostered creation of the White River Ad Hoc Work Group ("White River Group") to "recommend minor changes to the approved regulating plan[s]" for dams across the White River Basin, which included Clearwater Dam. Id. at 8242. In other words, the White River Group was to propose permanent changes to approved plans, including the Clearwater Lake Water Control Manual.

The Corps' regulations provided that water control plans "will be revised as necessary to conform with changing requirements resulting from [new] developments." ER 1110-2-240 at 2. The regulations also required that "plans will be subject to continuing and progressive study by personnel in field offices of the Corps." Id. Substantive revisions "require[d] public involvement and public meetings," and the Corps was required to provide a report to the public at least 30 days before the meeting "explain[ing] the recommended . . . change . . . explaining the basis for the recommendation . . . [and providing] a description of its impacts." Id. at 4a. Moreover, in making revisions, the Corps was also required to "comply with existing Federal regulations," such as the National Environmental Policy Act ("NEPA"). Id. at 2, A-1.

The White River Group included private recreational, agricultural, navigational, and hydropower interests, as well as state and federal agencies such as the Commission. The Commission objected to deviations from the approved water releases in the 1953 plan that would lower the release rates because such deviations would prolong the release period. The lower maximum release rates meant that water would evacuate from Clearwater Dam more slowly, causing consistent downstream flooding in the Management Area during the tree growing season. (The tree growing season lasts, on average, from April 4 to October 11 each year, and the "critical months" are June, July, and August.) Higher maximum release rates, on the other hand, would result in short-term waves of flooding that would quickly recede. The Commission specifically complained that the lake was 530 feet deep on April 15, 1994, and that, at the lower maximum rates, it took sixty days of constant releases for the lake to reach its targeted summertime level, flooding the Management Area for most of that two-month period.

In 1994, the White River Group, unable to recommend permanent revisions to the release plan, proposed a year "interim operating plan" that called for temporary deviations during an eight month period. J.A. 8244. The Corps approved "the proposed interim operating plan" as a deviation from April 1994 through April 1995, allowing deviations from the normal release rates from April through November. Id. at 8241. The plan set the maximum target level at 11.5, instead of 10.5 feet, for the first two weeks in April and then set the maximum level at 8 feet for the next month and 6 feet from mid-May through November. In February 1995, when the White River Group again proved unable to propose a final plan, the Corps approved an extension of the "interim operating plan . . . to continue as a deviation" for another 12 months through April 1996, allowing deviations from April to November. Id. at 8251. The Corps noted that it would "monitor the effectiveness of the interim operating plan" during that period. Id.

In February 1996, the White River Group formed a subcommittee of solely Black River interests ("the Black River Group"), including the Commission, to recommend a plan for Clearwater Dam. The Black River Group also could not reach consensus on a proposed permanent deviation plan for Clearwater Dam. Instead, the Corps approved a new "Interim Operating Plan" proposed by the Black River Group for Clearwater Dam for another 12 months through April 15, 1997, with deviations occurring April through November. The Corps said it would "continue to monitor the effectiveness" of both the White River and Black River "interim operating plans." Id. at 8254. The new Black River Group interim plan differed from the prior interim plan recommended by the White River Group. It set the release rate at 6 feet in June and at 5 feet from July through November. This interim plan lapsed in April 1997, and no new interim plan was immediately adopted, leaving the 1953 Manual release rates in place. The Corps did, however, approve a temporary planned deviation in accordance with the Manual from June 3, 1997, to July 5, 1997, to prevent possible flooding and another temporary planned deviation from June 11, 1998, to November 30, 1998, in response to a request from agricultural interests.

The White River Group disbanded in 1997 when it recommended a final plan for the rest of the White River Basin, but the Black River Group continued to work on a plan for Clearwater Dam. The Black River Group finally recommended a proposed plan on September 15, 1998, and that plan was approved as a temporary deviation for 13 months from December 1, 1998, to December 31, 1999, with deviations occurring during the entire 13 month period. This proposed plan also differed from the interim plans approved in prior years, setting the maximum level at 4 feet from mid-May through November but increasing the maximum level if the lake behind Clearwater Dam filled to a certain volume.

In 1999, the Corps began the process of adopting a revised permanent release plan for Clearwater Dam. In keeping with federal regulations, the Corps prepared an Environmental Assessment ("EA"). An EA is a brief report, without detailed descriptions or data, indicating possible environmental consequences that can help determine whether a more extensive Environmental Impact Statement ("EIS") is necessary pursuant to NEPA. An EIS is necessary where there is a possibility of significant environmental impacts. In comments made on the draft EA, the Commission objected to the proposed changes to the Water Control Manual. The Corps agreed that the proposed revision would require an EIS under NEPA.

Meanwhile, the Corps approved the continuation of the 1999 deviations for 11 months through December 1, 2000, as "a temporary Water Control Plan." J.A. 8294. In May 2000 and March 2001, the Corps and Commission together conducted tests to determine the environmental impact on the Management Area when certain levels of water were released from Clearwater Dam. In doing so, the Corps confirmed that tree roots would be flooded under the proposed plan, which could potentially damage or destroy the trees. Therefore, the Corps declined to further pursue a permanent revision to the 1953 Water Control Manual and returned to the releases set out in the original Manual.

Plan Date of Plan Deviations (and Date) Normal Regulation 10.5 ft or 11.5 ft*fn4 1993 Deviation Request Under Original Plan 9/29/93 -12/15/93 6 ft (9/29/93 - 12/15/93) 1994 White River Group Interim Plan 4/1/94 -4/15/95 11.5 ft (4/1/94 -4/14/94) 10.5 ft 8 ft (4/15/94 - 5/14/94) 10.5 ft 6 ft (5/15/94 - 11/30/94) 10.5ft or 11.5 ft

In sum, after approving a planned deviation in 1993, the Corps approved three different interim deviation plans with different release rates during the period from 1994--2000. During some portions of that period no interim plan was in place. When temporary plans were in place, for all but two years (1999 and 2000), the release rates deviated from the 1953 plan during only part of the year, usually April through November. During this entire 1994--2000 period, efforts were made to propose a perma- nent amendment to the 1953 plan, but no permanent revision to the plan was ever adopted. The effort was finally abandoned in 2001, and the un-amended 1953 plan continued to govern. The chart below summarizes the details of these temporary deviation plans.*fn5

11.5 ft (4/1/95 -4/15/95) 10.5 ft White River Group Interim Plan Extension 4/15/95 -4/15/96 8 ft (4/15/95 - 5/14/95 10.5 ft 6 ft (5/15/95 - 11/30/95) 10.5 ft or 11.5 ft 11.5 ft (4/1/96 -4/15/96) 10.5 ft 1996 Black River Group Interim Plan 4/15/96 -4/15/97 11.5 ft (4/15/96 -5/20/96) 10.5 ft 6 ft (6/1/96 -6/30/96) 10.5 ft 5 ft (7/1/96 -11/30/96) 10.5 ft 10.5 ft or 11.5 ft 1998 Deviation Request Under Original Plan 6/11/98 -11/30/98 5 ft (6/11/98 - 11/30/98) 1998 Black River Group Proposed Plan 12/1/98 -12/31/99 11.5 ft (12/1/98 -5/14/99) 10.5 ft or 11.5 ft 4 ft (5/15/99 - 11/30/99) 10.5 ft or ...

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