Following on the filing of the parties’ briefs on the remand in Arkansas Game from the Supreme Court, is this amici brief filed last week by the the Pacific Legal Foundation, the Cato Institute, the National Federation of Independent Business Small Business Legal Center, and the National Association of Home Builders in support of the Game and Fish Commission.
The brief argues that the Supreme Court “did not modify or overturn the well-settled test for adjudicating physical takings claims,” and refutes the government’s argument that the Court implicitly overruled all past takings cases in favor of a multi-factor test applicable whether or not the taking is the result of a physical invasion or a regulation.Br. at 4-5. The brief also argues that the Federal Circuit does not need to adopt a “new test” to take into account the “factors” the Court’s opinion set out because “the well-established test for adjudicating physical takings already accounts for the duration of the invasion when determining whether or not a taking occurred.” Id. at 7-8.