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.
Brian T. Hodges is the Managing Attorney for the Northwest Center of the Pacific Legal Foundation. Mr. Hodges received his JD cum laude from the Seattle University School of Law, where he was a member of the Order of the Barristers. Mr. Hodges focuses his work on individual rights and property rights. He actively litigates in the areas of regulatory takings, due process, land use, water law, environmental law, growth management, Indian law, and administrative law.