Ruth Bader Ginsburg

“ In this regard, we recall Chief Justice Marshall's sage observation that “general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.” ”

“ United States, 260 U.S. 327, 329–330 (1922) (“ [W] hile a single act may not be enough, a continuance of them in sufficient number and for a sufficient time may prove [a taking] . Every successive trespass adds to the force of the evidence.”) .
The Court of Federal Claims found that the flooding the Commission assails was foreseeable. In this regard, the court noted the Commission's repeated complaints to the Corps about the destructive impact of the successive planned deviations from the Water Control Manual. ”

“ From September to December 1993, the Corps released water from the Dam at a [p28] slower rate than usual, providing downstream farmers with a longer harvest time. As a result, more water than usual accumulated in Clearwater Lake behind the Dam. To reduce the accumulation, the Corps extended the period in which a high amount of water would be released. The Commission maintained this extension yielded downstream flooding in the Management Area, above historical norms, during the tree-growing season, which runs from April to October. ”

“ IV We rule today, simply and only, that government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking. ”

“ In the course of the Sanguinetti decision, however, the Court summarized prior flooding cases as standing for the proposition that “in order to create an enforceable liability against the Government, it is, at least, necessary that the [p35] overflow be the direct result of the structure, and constitute an actual, permanent invasion of the land.” Ibid. The Government would have us extract from this statement a definitive rule that there can be no temporary taking caused by floods. ”

“ The sentence in question was composed to summarize the flooding cases the Court had encountered up to that point, which had unexceptionally involved permanent, rather than temporary, government-induced flooding. 264 U.S., at 149. See Cress, 243 U.S., at 328; United States v. Lynah, 188 U.S. 445, 469 (1903) . But as just explained, no distinction between permanent and temporary flooding was material to the result in Sanguinetti. We resist reading a single sentence unnecessary to the decision as having done so much work. ”

“ For the same reason, we are not equipped to address the bearing, if any, of Arkansas water-rights law on this case. [1] The determination whether a taking has occurred includes consideration of the property owner's distinct investment-backed expectations, a matter often informed by the law in force in the State in which the property is located. Lucas, 505 U.S., at 1027–1029; Phillips v. Washington Legal Foundation, 524 U.S. 156, 164 (1998) . But Arkansas law was not examined by the Federal Circuit, and therefore is not properly pursued in this Court. ”

“ Tahoe-Sierra, 535 U.S., at 342 (duration of regulatory restriction is a factor for court to consider) ; National Bd. of YMCA v. United States, 395 U.S. 85, 93 (1969) (“temporary, [p39] unplanned occupation” of building by troops under exigent circumstances is not a taking) .
Also relevant to the takings inquiry is the degree to which the invasion is intended or is the foreseeable result of authorized government action. See supra, at 517; John Horstmann Co. v. United States, 257 U.S. 138, 146 (1921) (no takings liability when damage caused by government action could not have been foreseen) . ”