Arkansas Game & Fish did not overturn the well-settled physical takings test

April 02, 2013 | By BRIAN HODGES

Yesterday, PLF attorneys filed an amicus brief in the remand proceedings in Arkansas Game & Fish Commission v. United States. As you may recall, late last year, the U.S. Supreme Court held that temporary, government-induced flooding is not categorically exempt from the requirements of the Takings Clause. The decision recognizes that any government action that interferes with the enjoyment and use of private property can give rise to a takings claim: “In view of the nearly infinite variety of ways in which government actions can affect property interests, the Court has recognized few invariable rules in this area.” In so ruling, the Court closed a long-standing loophole in takings law that had allowed the federal government to avoid liability for having repeatedly flooded the Arkansas Game & Fish Commission’s land, and remanded the case for further proceedings.

As I point out in an article in Planning & Environmental Law, the Arkansas Game & Fish decision left open many nagging questions about temporary physical takings. Worse yet, the opinion has the potential to spawn even more confusion about the proper test for evaluating temporary physical takings cases.

Toward the end of the opinion, the Court listed various regulatory and physical takings inquiries to illustrate the different ways in which the duration of a government act can be relevant to a takings claim:

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.

Also relevant to the takings inquiry is the degree to which the invasion is intended or is the foreseeable result of authorized government action. …  Severity of the interference figures in the calculus as well.

If read in isolation, that passage can be confusing. After all, it lists, without any differentiation, various tests that have been developed over the years to determine different types of takings in very different circumstances. My Planning & Environmental Law article predicted that

the meaning and impact of this passage will likely be a centerpiece of the remand proceedings in Arkansas Game & Fish Commission, where the Federal Circuit will review the merits of the Commission’s takings judgment. It remains to be seen whether the lower court will apply the Court’s longstanding tests for determining temporary physical takings, or chart a new course based on this enigmatic passage.

I was right.  Robert Thomas at notes that the parties in Arkansas Game & Fish seem to have read these paragraphs as creating a new, multi-factor “Penn-Central-ish” test for temporary physical takings cases.

PLF’s amicus brief argues that Arkansas Game & Fish did not modify or overturn the Court’s well-established test for adjudicating physical takings, which simply asks whether a government invasion directly and substantially interferes with an owner’s rights in private property.  If so, the government must compensate the owner for value of the property taken.

PLF’s amicus brief points out that the U.S. Supreme Court has repeatedly held that regulatory and physical takings are distinct legal theories and are therefore subject to different tests. And there is no need for the court to resort to inapt inquiries designed to evaluate the impact of regulatory policies on property in order to consider the effect that a temporary physical interference has on private property rights. The well-settled test for physical takings is perfectly adequate to evaluate temporary physical invasions.