Will Arkansas Game & Fish Commission v. United States Provide a Permanent Fix for Temporary Takings?

Abstract

The U.S. Supreme Court’s decision in Arkansas Game & Fish Commission v. United States recognized 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 dicta in the decision left many pondering whether significantly different tests will apply depending on the duration of the government invasion. This Article reviews the state of the law regarding temporary physical takings both before and after Arkansas Game & Fish with particular regard to the test applicable 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 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.