Constitutional Issues Flashcards
What are the two types of takings?
Physical and regulatory.
What is a physical taking?
Direct appropriation of property or its equivalent.
What is a regulatory takings?
Regulation so onerous is is tantamount to an appropriation or ouster.
What are the two types of per se regulatory takings?
1) Regulation requires a physical invasion of property.
2) Regulation denies owner of all economically viable use of the property (and not merely an explicit statement of common law limitations like nuisance).
What is the Penn Central test and what are its factors?
A test for determining whether a regulatory takings has occurred.
Denominator is parcel as a whole.
1) Economic impact of the regulation on the owner;
-Unreasonable impairment of value or use of property in context of other laws/regulations?
- Mere diminution in value not enough.
2) Extent to which the regulation interferences with reasonable investment-backed expectations; and
- must not be unilateral/abstract.
3) Character of the government action—equivalent of physical invasion or “public program adjusting the benefits and burdens of economic life to promote common good”?
- Appropration/invasion?
What factors do courts consider in cases involving temporary effects of government action on private property?
1) Duration of occupation/regulatory restriction
2) Degree to which invasion intended or foreseeable result of gov’t action
- unintended-no taking
3) Character of land at issue
4) Owners reasonable investment-backed expectations
5) Severity of interference
Can a state agency extinguish a riparian right to future uses?
No—riparian rights may be used for purposes for which riparian lands are or may be adaptable. Usually, legislature must delegate power to a state agency to limit future rights. However, in CA, agency can decide that future unused riparian use has lower priority than other uses.
Does a landowner own the waters percolating generally through the soil beneath their property?
No—not until it is captured; until then the right is usufruct.
Legislation limiting the right to use underlying groundwater is reasonable and does not require compensation where it operates to arbitrate between competing public and private uses, even where property declines significantly as a result.
Not in Texas, though.
If a government stops an out-of-priority pumper from pumping despite the fact they’ve been doing it for years, is it a takings?
CO—No. Prior appropriation predates its PA act; well owners have not constitutionally protected property interest in the unfettered use of their wells. Gov’t is just enforcing rights between rights holders.
Well owner owns:
priority date
to pump a certain amount
for beneficial use
subject to seniors and shortages.
What was the holding in Aligretti?
Plaintiff did not suffer a regulatory takings because there is no property right to unrestricted use; plaintiff only demonstrated a possible restriction on more economic uses (still could rent out land). Was still able to farm 400-800 out of 2400 acres.
Are restrictions on the amount of water an appropriator can divert a takings? If so, what kind?
If it is a diminution in the amount of water they are entitled to, then it is a permanent physical takings (water is diverted away from property and can never be used again). However, rights are limited by beneficial use, so if the appropriator still received enough water to fulfill their use, not compensable.
What factors are relevant to demonstrating a cognizable property interest under Baley?
1) Right appurtenant to land ownership in OR.
2) Reclamation is the trustee (in charge of distribution) and landowners are beneficiaries.
3) Whether water delivery contracts with reclamation have altered, clarified, or limited landowners rights to water.
What is equitable apportionment and how is it used?
An interstate common law used to determine relative rights of states. Each state has an equal right to make reasonable use of a shared resource.
Protects only rights to water reasonably required and applied.
Affirmative duty on states to conserve and augment supplies.
Can address state claims for future uses.
Complaining state has burden to show real or substantial injury or damage.
Responding state can show complainer can offset loss or show clear and convincing evidence of benefit to responder that substantially outweighs harm to complainer.
Do states own underlying water in interstate aquifers?
No. Equitable apportionment applies.
