Takings and rest

Question 1

Elements of Taking

Answer 1

i) Taking of private property
ii) For public use (promoting general welfare)
iii) Without just compensation

Damage if you can prove i) and iii); injunction if all 3

Question 2

Per se Takings (categorical)

Answer 2

i) Physical invasion (needs to be not subject to LL-tenancy, permenant intrusion, introducing a stranger) - fight by saying it was i) temporary or ii) due to reasonable regulations
ii) Deprivation of all economic value (Lucas): successful argument hinges on i) 100% of value from ii) 100% of property iii) Taking vs. regulatory nuisance
iii) Deprivation of core property strand (Babbit): ability to transfer? What’s core?
iv) Exaction: Essential Nexus test (connection between owner’s claim and concession gov is asking for?) and Rough Proportionality test (is owner’s claim proportionate to what gov is asking for?)

Question 3

Essential Nexus Test

Answer 3

is there a connection between what the effects of what the owner is asking for and the concession the government is asking from the owner in exchange?

1. Connection between the effects on the public interest that the owner’s activity will have and the thing that the government is asking the owner to do
2. Logic: make sure what government is asking for is connected to the interest that the owner is interfering with and that the government is trying to protect
3. Failed in Nolan because no essential nexus between building permit (taking away beach view) and providing access to property
4. Is there a connection between the property right infringement and the harm?

Question 4

Rough Proportionality Test

Answer 4

is there (reasonable) proportion between what the government is asking for and what the owner is asking for?

1. Tough test because it doesn’t specify what the proportion should be
2. Dolan: leaving the plot open is rough policy response to effect of her development (more flooding), however, disproportionate to ask her to deed the portion to the government – government could’ve just asked her to keep the land open (to solve the floodplain issue)
3. Koontz uses a compound test of essential nexus and rough proportionality (request doesn’t have to be conditional; here, it was asking for straight money or deny the permit)
4. Does the taking align 1:1 with the harm the government wants to alleviate?
5. Is there some alternative strategy that can solve the harm without infringing upon the owner’s property rights? Is the intervention sufficient to solve the harm?

Question 5

Regulatory Takings (Penn Central test)

Answer 5

If per se takings claim fails, turn to this test.

i) Economic impact on the owner (extensive vs. limited)
ii) Character of governmental action (singled out v affects everyone, preventing a nuisance, benefits to some vs. everyone)
iii) Interference with investment-backed expectations: was the law enacted, how severe was the impact, extent of investments already made, dramatic change v. normal course of law changing, etc

Question 6

Judicial Taking

Answer 6

Last resort if per se taking and Penn Central test doesn’t save it

Loss of an established property right that you had when walking into the court and lost when walking out of it (you lost it because court switched doctrines)

Injunction to reverse (not just compensation)

Question 7

Public Use argument and views

Answer 7

Last resort after Per Se taking and Penn Central Test

Taking was not allowed because it was made for non-public use not allowed under 5th amendment

Kelo test: does it directly promote public purposes or benefit (new jobs, tax revenue); Maj.: expansive read of “public use”

O’Connor: gov can only justify not keeping the property after they take it if it was creating harm to the public (i.e. blight)

Thomas: narrow view public means public ownership or open to the public

Question 8

Native American Title

Answer 8

Just Compensation From Federal Government NOT Required

UNLESS Federal Government Previously Recognized Native Americans Have Title (Treaty, Statute, etc.)

Federal Government has fee absolute; state can’t take it; Native Americans have titles of occupancy (can’t transfer & different from fee)

Gov can argue that just compensation was what was subjectively valuable at the time (rations and blankets)