Taking

Taking in United States

Taking Definition

An element of “larceny” (g. v.)

Taking in Foreign Legal Encyclopedias

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Taking Taking in the Family Law Portal of the American Encyclopedia of Law.
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Legal Issue for Attorneys

An element of “larceny” (g. v.)

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This definition of Taking Is based on the The Cyclopedic Law Dictionary . This definition needs to be proofread..

See Also

See: Eminent Domain in this Legal Encyclopedia
See: Eminent Domain definition in the Law Dictionary

Taking in Environmental Law

Physical entry onto private property or regulatory action by the government that significantly limits the property owner’s rights associated with use of property. Under the Fifth Amendment to the Constitution, private property cannot be taken for public use without compensating the owner.

Although the taking issue is more pertinent to the law of conservation than to general environmental law, the concept is very important. Taking claims arise primarily in the context of land use, which is generally regulated through zoning restrictions. For example, quarries may be prohibited in residential areas because they are dangerous, and industrial concerns may also be excluded from a community for similar reasons. Zoning restrictions do not, for the most part, result in a taking. The constitutional question arises when a lawful economic use for the property exists at the time it is acquired and all viable economic use is later eliminated by the government.

Constitutional protection against taking is not limited to real estate but applies to any privately owned property. Most environmental cases focus on realty and its use, though the Supreme Court dealt with intellectual property in the case of Ruckelshaus v. Monsanto, a suit to prevent the Environmental Protection Agency (EPA) from using research belonging to Monsanto to support other applications for pesticide registration. That case involved the Federal Insecticide, Fungicide, and Rodenticide Act, and the statute authorizes such use but requires the applicant to compensate the owner of the data.

In Monsanto, a 1984 decision, the court was not faced with deciding whether a taking had occurred, but whether the government should be enjoined so it could not use the information. Nevertheless, the Supreme Court clearly recognized that a taking of intellectual property for public use was subject to the Fifth Amendment taking provision. But before it could show a taking had occurred, Monsanto had to prove it had a reasonable expectation the property would be kept secret.

A larger question loomed in the background, and that was whether the law itself (the Federal Insecticide, Fungicide, and Rodenticide Act)was unconstitutional. It is clear from this case and others that the fact that a statute may result in a taking is not enough to invalidate it. The Fifth Amendment does not prohibit the government from taking private property for public use; it simply requires payment for the property that is taken. The issue of whether a taking has occurred does not usually turn on the state’s right to govern. State and federal agencies have great powers to protect the public, preserve the peace, and manage its resources. So a state may do what it wants to do in most situations, but it must pay if the action goes too far.

The Monsanto case attacked the government’s right to use private property in such a way that other private parties would benefit. The Supreme Court upheld the government’s right to act according to the statute but indicated that the end result could be a public not a private taking. It refused to issue an injunction, however, since injunctions are never favored if a remedy exists to compensate the party claiming injury.

In this situation, two possible remedies existed. The first was the provision within the statute itself that required the user of the data to compensate the owner and to submit to binding arbitration if the parties could not agree. The second, a special federal law called the Tucker Act, allows parties to sue the government when a federal statute or regulation has resulted in a taking of private property for public use.

Congress establishes or recognizes existing public values through statutes, such as protection of wetlands, coastal regions, and endangered species. The resulting governmental restrictions may interfere with the landowner’s right to use the property as the owner sees fit. This is the heart of most environmental taking claims.

Early History of Taking Cases

Early cases allowed the government to use its police power very broadly without having to compensate the owner. The basis of analysis was public nuisance law. If the state declared an activity to be against the community’s interest, it could then stop the activity because it was a public nuisance. Courts did not look far beyond the stated purpose of the law, and they did not consider the impact of the regulation upon the owner. Once they found that the state had a legitimate reason for the regulation, the analysis stopped.

Two types of taking cases exist: physical taking, which involves entry onto the property, and regulatory taking, where government action restricts the use of property. Most environmental takings are regulatory takings.

The case which established the right of a government to regulate “public nuisances,” even though the regulation severely impacts a person’s business in the United States, was Mugler v. Kansas, decided in 1887. In Mugler, the property owner was in the business of manufacturing beer. The state prohibited liquor, so the owner could no longer continue the business. The Supreme Court upheld the state’s right to abate the nuisance; it accepted the legislature’s findings that alcohol itself caused community problems and that the activity was a public nuisance. The state did not have to compensate the owner of the property.

The 1922 case of Pennsylvania Coal Company v. Mahon dealt with a regulatory taking. The Pennsylvania Coal Company was sued by a subsequent owner of property to force it to stop mining under its property. The property owner, Mahon, used a Pennsylvania law that prohibited coal mining under a dwelling due to potential for subsidence and damage to structures as the basis for the suit. Within the deed that transferred the land to the Mahons, the coal company had specifically reserved rights to mine beneath the surface. The law was enacted after the land was transferred, and essentially destroyed the coal company’s previous rights.

The Pennsylvania Coal Company case is important because the court recognized that the stated purpose for limiting a use is not necessarily the end of the inquiry. In determining whether a taking had occurred, the court also had to consider the diminished value of the property after the government action. For the first time, the Supreme Court acknowledged that failure to consider impact on the landowner could destroy the meaning of the constitutional taking provision.

Later, in Penn Central Transportation Co. v. New York City, 1978, which prevented the landowner from building office space above an historic landmark, the court added another consideration: did the government activity interfere with investment based expectations? This case advanced the balancing of factors involving the government’s purpose and the economic impact on the landowner. However, in this case, the court did not find a taking.

Later, in Penn Central Transportation Co. v. New York City, 1978, which prevented the landowner from building office space above an historic landmark, the court added another consideration: did the government activity interfere with investment based expectations? This case advanced the balancing of factors involving the government’s purpose and the economic impact on the landowner. However, in this case, the court did not find a taking.

Balancing Interests in Taking Claims

By 1980, courts were balancing interests to decide taking claims, but they usually sided with the government. In Agins v. Tiburon, a developer had bought five acres of land, intending to build a number of homes. After the purchase, the city rezoned the area with density restrictions, and the owner could only construct five single-family dwellings on the five acres. The Supreme Court upheld Tiburon’s police power. Furthermore, it believed the plaintiff still could profit in its use of the land, even though it could not sell as many homes. The test in the case was this: did the action substantially advance a legitimate state interest or did it deny the owner an economically viable use of the land?

Another case decided in the same year, Nollan v. California Coastal Commission, established a nexus requirement between the government action and the legitimate state interest. Courts began to look more closely at the underlying purpose of the law and the way it was pursued. In Nollan, the landowner bought a piece of beachfront property with the intention of tearing down a bungalow and building a two-story house. The California Coastal Commission would not allow it unless the owner dedicated a lateral public easement. The stated reason behind the requirement was visibility: building a two story house would interfere with the public’s viewing the property. However, the Supreme Court could not find a relationship between allowing the public to go onto the property and their ability to view the ocean. It found that a taking had occurred.

Recent Taking Claims

Two cases decided by the U.S. Court of Claims in 1990 extended the analysis of taking claims to permit denials for wetland filling. In both Florida Rock Industries, Inc. v. United States and Loveladies Harbor, Inc. v. United States, the court decided that some permit denials resulted in taking and the owner had to be compensated.

About the time of those cases, President George Bush directed agencies to consider the effects of their decisions and budget for taking claims. Prior to the Florida Rock and Loveladies Harbor cases, the EPA and the Corps of Engineers believed that a permit denial could not result in a taking because permits are not rights that are removed by governmental action.

Timing is important in a taking claim. For example, if a speculator purchases real estate today, knowing it is in a wetlands, he would be hard pressed to prove a loss of a right if he is unable to get a permit to fill it. However, if a person bought property in 1971 with the intention of developing it, the court may agree that a permit denial is a taking, since at that time wetlands did not fall under federal regulation.

Two other cases have been decided by the Supreme Court since the Loveladies Harbor and Florida Rock judgments. One is Lucas v. South Carolina Coastal Council, a 1992 case; the other is Dolan v. City of Tigard, a 1994 decision. Both of the cases dealt with coastal management provisions.

In Lucas, in 1982 the landowner bought two lots on the coast, intending to build houses. In 1988, a new law was enacted that prohibited building permanent structures on the property. The stated purpose of the law was to protect a valuable public resource that was threatened. Lucas sued, claiming the new law deprived him of all economically viable use of the property. The state trial court agreed, but the state Supreme Court said no taking had occurred. Before the case was decided by the state Supreme Court, the law was amended to allow special permits. The state then argued in the U.S. Supreme Court that the case could not be decided yet because the landowner might get a permit.

The U.S. Supreme Court reversed the decision and sent the case back to the trial court, stating that even a temporary taking could justify compensation. It emphasized the need to look at the state’s law concerning what rights accompanied land ownership. If a right exists at the time the property is acquired and the state later changes the law so that it eliminates economically viable use of the property, it must compensate the landowner. Thus, a state may have a legitimate interest in regulating for the public good, but if in doing so, it eliminates previously existing private rights, it must pay for taking property.

The Dolan case reinforced the nexus principle. The landowner had applied for a permit to build a new store on her property and to pave a parking lot. The city of Tigard refused to approve the owner’s building application unless she agreed to dedicate a public greenway to minimize flooding and additional property to be used as a pedestrian and bicycle pathway to reduce traffic congestion.

Tigard’s purposes were, the U.S. Supreme Court found, legitimate state interests. However, the owner was asked to dedicate 15 percent of her property to the government. The court believed a public greenway would be no more effective than a private one to prevent flooding. In dedicating the land to the public, the owner lost a significant right associated with land ownership: the right to exclude others from the premises. The court held that the city had taken the property and must compensate the owner. In its opinion, it found that the government’s purpose did not bear a sufficient relationship to the action it took.

Analysis of Case Law

The recent cases involving taking claims emphasize private rights associated with property over the government’s “legitimate state interest.” Earlier cases often stretched to find the reason behind the action, and that ended the analysis. Today the government may have authority to act as it does and still be liable for taking property if (1) it eliminates a previously existing right associated with the property, (2) it destroys all economically viable use of the property, and (3) there is no logical connection between the government’s interest and the result.

Even with these principles, it is very difficult to predict the outcome of a taking claim. Supreme Court taking decisions are narrowly construed because they invariably apply only to the facts before them and do not attempt to establish brightline rules. A successful taking claim does not invalidate governmental authority to act; it simply emphasizes the constitutional right to be compensated for property taken for the public’s use.
Based on “Environment and the Law. A Dictionary”.

Taking: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Taking. This part provides references, in relation to Taking, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Taking by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Taking and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Taking or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Taking and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Taking. Finding these decisions can be challenging. In many cases, researchers about Taking should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Taking when formerly requested by a designated government officer):

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