Is the federal government shifting the focus in Arkansas Game & Fish Commission?

September 21, 2012 | By BRIAN HODGES

As the October 3, 2012, argument date draws closer in Arkansas Game & Fish Commission, the issues that the U.S. Supreme Court will likely have to decide are becoming more focused.

Somewhat surprisingly, the central question in this case—whether a physical invasion of private property must continue permanently to take property within the meaning of the Takings Clause—seems to be the least controversial of the questions posed by the parties’ merits briefs.  The question that is drawing the most attention is whether a temporary flood invasion should be treated like all other temporary physical takings (for which the Court has already established a test as set out in the PLF/Cato Institute/ALF amicus brief), or whether the Court should devise a new test applicable only to cases of temporary flooding.

The Commission and it supporting amici argue the former, while the federal government and its amici argue for a new test that would be more government-friendly.  In fact, much of the federal government’s brief asks the Court to devise a new, multi-factorial test for physical taking case that is based loosely on the regulatory taking test of Penn Central Transp. Co. v. New York City (1978) (which balances the economic impact of a regulation against the owner’s expectations regarding the valuable use of his or her property).

While the federal government’s request will likely see significant argument, it should be a non-starter for the reasons discussed in the PLF/Cato Institute/ALF amicus brief and the Commission’s reply brief.  Simply put, there is no basis in the Supreme Court’s physical takings case law to develop a different test for temporary flooding.  The Court has applied the same “character of the invasion” test—which was fully set out in United States v. Causby (1946)—to every physical taking case it has reviewed, regardless of the method or duration of the invasion.

Ironically (or, perhaps, frustratingly), the federal government’s position in this case is the direct opposite of what it argued ten years ago in Tahoe-Sierra Pres. Council v. Tahoe Reg’l Planning Agency (2002).  In that case, the federal government insisted that the tests developed for regulatory takings are distinct from and cannot be commingled with tests developed for physical takings.  The Tahoe Court agreed, explaining that the “longstanding distinction between acquisitions of property for public use, on the one hand, and regulations prohibiting private uses, on the other, makes it inappropriate to treat cases involving physical takings as controlling precedents for the evaluation of a claim that there has been a ‘regulatory taking’ and vice versa.”  The Court continued, “we do not ask whether a physical appropriation advances a substantial government interest or whether it deprives the owner of all economically viable use.”

The federal government and its supporting amici provide no explanation why the Court should backtrack from Tahoe and blur the line between physical and regulatory takings in this case.