May 10, 2013

Inconsistent language = inconsistent justice

By Brian T. Hodges Senior Attorney

Earlier this week, I put the finishing touches on an article discussing the U.S. Supreme Court’s decision in Arkansas Game & Fish Commission v. United States. As you may recall, the case began when the U.S. Army Corps of Engineers, as part of a temporary dam management plan, inundated the Commission’s timberlands for six consecutive years. The Commission sued and was awarded $5.8 million in just compensation for the value of timber lost to the floods. The case was appealed and eventually made its way to the Supreme Court on the question whether a temporary invasion can effect a taking of private property. And on that question, the Court handed property owners a significant victory. The decision 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.

But the decision is not without problems. Most notably, the Court 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. That confusion is largely due to the Court’s inconsistent use of the terms “temporary” and “permanent” to describe government invasions of limited duration.

My article reviews the state of the law regarding temporary physical takings both before and after Arkansas Game & Fish with particular regard to the questions (1) what test is applied to physical invasions of limited duration, and (2) to what degree the duration of the government invasion should influence the court’s resolution of a takings claim. The article 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.

The article is freely available for download on SSRN.

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