Arkansas Game & Fish Commission v. United States: U.S. Supreme Court Disapproves of Per Se Defenses in Takings Cases

Abstract

The United States Supreme Court's decision in Arkansas Game& Fish Commissionv. United States confirmed that a government-caused, temporary interference with private property may give rise to a claim for compensation under the Takings Clause of the Fifth Amendment to the U.S. Constitution. The Court overturned an appellate decision that had held that temporary,government-induced flooding was categorically exempt from the protections of the Takings Clause. The decision is significant to landowners and government because it cast doubt on the viability of “blanket“ defenses in future takings claims:

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.

The decision, however, left questions regarding the appropriate test to be applied in temporary physical takings cases undecided. As a result, the decision created an uncertainty in its takings case law that is likely to arise again.