Also known as: per se physical takings · physical per se taking
Written by attorneys · grounded in primary & secondary sources — see below
A category of government action under the Takings Clause that occurs when the government appropriates a right of physical access for third parties to enter private property. The appropriation of even a temporary or intermittent right to invade constitutes a per se physical taking that requires just compensation. The doctrine focuses on the character of the invasion rather than its duration or economic impact.
Penelope Price owns a large orchard where seasonal workers harvest apples. A state labor rule requires her to admit union organizers onto the fields for three hours each week during harvest season. The organizers enter on a fixed schedule for eight consecutive weeks and speak with workers who cannot leave their stations. Price sues, claiming the mandated access appropriates her right to exclude others from the land.
Prism Analytics produces specialized sensors. A federal program requires the company to admit government inspectors onto its manufacturing floor for three hours each week to verify inventory levels. The inspectors enter on a fixed schedule for eight consecutive weeks and examine stored units. Prism challenges the mandated access as an uncompensated appropriation of its right to exclude others from the facility.
Select any source to read its text and confirm it supports the definition.
No. A regulation that grants third parties a recurring right of physical access to private property effects a per se physical taking even when each entry is brief and time-limited. The key inquiry is whether the government has appropriated the owner's right to exclude, not the duration of any single visit.
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No. The per se rule applies once the government appropriates a right of physical access. The owner need not show that the invasion eliminates all economically beneficial use of the property or substantially reduces its market value.
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The doctrine applies to real property. Government compulsion granting third parties recurring physical access to land effects a per se physical taking once the owner's right to exclude is appropriated.
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When the government authorizes physical invasions by third parties, courts apply the per se rule rather than the multi-factor regulatory-takings test. The appropriation of the right to exclude itself triggers the duty to compensate, without regard to economic impact or investment-backed expectations.
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…manner in which the Government effectuates a regulation into the dispositive factor converting a regulatory scheme into a per se physical taking. Because the Order did not destroy each property right in the reserve raisins, she would affirm the Ninth Circuit's judgment and uphold the reserve requirement against a per se takings…