Will Arkansas Game and Fish Commission versus United States Provide a Permanent Fix for Temporary Takings?

Abstract

The United States Supreme Court’s decision in Arkansas Game and Fish Commission versus United States, 133 S. Ct. 511 (2012), is significant because it recognizes that any government action that interferes with the enjoyment and use of private property, whether permanent or temporary in duration, can give rise to a claim under the Takings Clause of the Fifth Amendment. Yet, the decision did not answer important questions regarding the appropriate test to be applied in temporary physical takings cases, leaving many pondering whether significantly different tests will apply depending on the duration of the government invasion.

This note reviews the state of the law regarding temporary physical takings both before and after the Arkansas Game and Fish Commission case with particular regard to the questions of what test is applied to physical invasions of limited duration, and to what degree the duration of the government invasion should influence the court’s resolution of a takings claim. The note concludes that drawing a distinction between so-called “permanent” and “temporary” invasions, based solely on the duration of the government occupation, is meaningless when determining liability under the Takings Clause.

Keywords: Takings Clause, Supreme Court, temporary takings, Arkansas Game and Fish Commission