If you understand that headline, congratulations: you are officially a takings geek.
Here's another piece worth reading, to prepare yourself for next week's oral arguments in Arkansas Game & Fish Comm'n v. United States, No. 11-597 (cert. granted Apr. 2, 2012): Is the federal government shifting the focus in Arkansas Game & Fish Commission? by my PLF colleague Brian T. Hodges.
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.
As the property owner's reply brief also pointed out, the SG has shifted gears, and rather than simply defending the Federal Circuit's conclusion that a flood must be intended to be "permanent" in order for the result to be a taking, the government's brief, argues instead for an entirely new test, one transported over from the regulatory takings arena, our old nemesis the Penn Central multi-factor ad hoc test. The test no one likes, and no one really knows what the heck it means.
As Brian points out, next week's oral arguments could be an interesting hour of conversation about takings law. Stay tuned.
