Also known as: per se physical takings · physical per se taking
Written by attorneys — see sources 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.
The Agricultural Marketing Agreement Act of 1937 authorizes the Secretary of Agriculture to promulgate marketing orders to help maintain stable markets for particular agricultural products. Under the resulting California Raisin Marketing Order, growers must give a percentage of their crop to the Government free of charge in years when the Committee sets a reserve requirement. The Raisin Administrative Committee determined the allocation at 47 percent in 2002-2003 and 30 percent in 2003-2004. Growers generally ship their raisins to a handler. The handler physically separates the reserve raisins due the Government, pays the growers only for the free-tonnage raisins, and packs and sells the free-tonnage raisins. The Raisin Committee acquires title to the reserve raisins that have been set aside and decides how to dispose of them in its discretion. Proceeds from Committee sales are principally used to subsidize handlers who sell raisins for export. Raisin growers retain an interest in any net proceeds after deductions for export subsidies and the Committee's expenses. The Hornes are both raisin growers and handlers. They handled their own raisins and raisins produced by other growers, paying those growers in full for all of their raisins, not just the free-tonnage portion. In 2002 the Hornes refused to set aside any raisins for the Government. The Government assessed a fine equal to the market value of the missing raisins—about $480,000—and an additional civil penalty of just over $200,000 for disobeying the order. When the Government sought to collect the fine, the Hornes sued, arguing that the reserve requirement was an unconstitutional taking under the Fifth Amendment. This Court previously held that the Hornes could present their constitutional defense and remanded for consideration on the merits. On remand, the Ninth Circuit viewed the reserve requirement as a use restriction rather than a per se taking. The Supreme Court granted certiorari.
View caseNo. 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…