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Government action that causes a temporary physical invasion may constitute a taking under the Fifth Amendment.

When it constructs a dam, the U.S. Army Corps of Engineers is required to implement a water control plan that details safety features, release rates, and other operating instructions that are outlined in the Water Control Manual.

Between 1993 and 2000, the U.S. Army Corps approved several temporary deviation plans that caused temporary flooding and destroyed nearly 18 million board feet of timber on Petitioner’s land. Petitioner alleged that temporary release rate deviations constituted a taking and brought a 28 U.S.C. § 1491 action against the United States seeking just compensation under the Fifth Amendment.

The United States Court of Federal Claims held that the deviations were recurring and constituted a temporary taking and awarded Petitioner damages. The Court of Appeals for the Federal Circuit found the deviations to be temporary, and, relying on Supreme Court precedent that takings must be permanent and predictable, reversed.

The Supreme Court reversed, holding that temporary flooding was not categorically excused from Takings Clause liability and that “government-induced flooding of limited duration may be compensable” under the Fifth Amendment. The Court stated that temporary invasions of property are subject to a more complex balancing test to determine whether they constitute a taking, and outlined several important factors to be considered, including: duration of the invasion; whether the invasion was intentional or foreseeable; characteristics of the land; and the owner’s “reasonable investment-backed expectations.”