Chapter § 15.8

• Jurisdiction: Oregon

§ 15.8 TEMPORARY TAKINGS

Coast Range Conifers, L.L.C., 339 Or 136, describes the spatial dimension of the whole-parcel rule. See § 15.7-2(d) (parcel as a whole). The rule also has a temporal dimension. See Boise Cascade Corp. v. State by & through Board of Forestry, 216 Or App 338, 347, 174 P3d 587 (2007), cert den, 555 US 828 (2008). The temporal dimension is reflected in the concept of temporary takings.

The temporary taking of all economically viable use may constitute a taking under the Oregon Constitution as well as under the federal Constitution. Boise Cascade Corp., 325 Or at 198-99. To distinguish between a taking and "administrative inconvenience or delay," a plaintiff must allege some permanence in its loss—"that it has been denied all economic use of its property under a law, ordinance, regulation, or other government action that either is permanent on its face or so long lived as to make any present economic plans for the property impractical." Boise Cascade Corp., 325 Or at 199.

A temporary taking, however, should be distinguished from a temporal regulation that affects the use of the property only during a certain time period. In Boise Cascade Corp., the court considered an Oregon Board of Forestry rule that prohibited harvest in certain areas during certain times of the year, in order to protect the Northern Spotted Owl. Because the challenged regulation prohibited harvesting only during certain months of the year and did not prohibit harvesting during the balance of the year, the allegations did not state a takings claim...