In 2013, the government forced Rose Knick to grant the public access to her farmland after it was rumored to be the location of a former burial site.
Rose was offered no compensation in exchange for this requirement to allow would-be grave seekers to trespass on her private farma violation of her constitutional rights.
Youve just come face-to-face with the legal principle of takings, under which a government entity takes your private property for public use, either directly by an eminent domain seizure, or indirectly by regulation.
If theres good news in this scenario, its that as a property owner in the United States, youll still enjoy certain rights when youre faced with a property taking, including a right to full compensation and a right to challenge the seizure in court.
In Roses case, Pacific Legal Foundation represented her free of charge, ultimately resulting in a victory at the Supreme Court.
But what is the actual concept of a taking, and why is it so important in our system of government?
As with so many contemporary legal questions, the origin of the debate over property rights stretches back to the very founding of our nation.
Among the key goals of our nations founding documents was to protect individual rights and to place strict limitations on the powers of both the federal and state governments. The Founders well understood that protecting private property rights was of paramount importance in meeting those goals.
While the colonists were still living under British rule, property rights were routinely violated. Writs of Assistance subjected colonists to invasive searches and seizures by British troops under the guise of searching for goods that may have been imported illegally and on which taxes had not been collected. This is precisely why the Fourth Amendment came into existence.
Several other key provisions in the Constitution recognize the fundamental purpose of property rights. For example, the Takings Clause of the Fifth Amendment, which limits the power of the federal government, provides that nor shall private property be taken for public use, without just compensation.
Or consider the Due Process Clause of the Fourteenth Amendment, which similarly limits the power of state and local governments by commanding that nor shall any state deprive any person of life, liberty, or property, without due process of law.
These provisions recognize the fundamental nature of the rights we call propertythe right to tell otherskeep out; the right to develop and use land; and the right to derive income from that property. These rights were critically important, both to the Founders who adopted the original Constitution after the Revolution and the drafters of the Fourteenth Amendment after the Civil War.
And this is where takings come in. The usual situation where the governments power is limited is when it acquires private property by eminent domain. As the Supreme Court has recognized, all sovereign governments have the power of eminent domain by which they can force the owner of private property to sell it to the government.
But that power is limited: it can be executed only as long as the taking is for public use, and the government provides the owner with just compensation. If the public benefits from taking someones private property, it is only fair that the entire publicand not a lone property ownerbear the cost.
That is exactly how the Supreme Court summed it up more than 50 years ago:
The Fifth Amendments guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.
A half-century later, that assessment remains a sound basis for limiting government power and protecting property owners in disputes over takings.
The typical situation is where private property is taken for some public use, such as a highway, post office, or military base, and the government agrees to compensate the owner. It may not seem fair to be forced to give up property, but at least the owner can be confident theyll be justly compensated for the loss, thanks to the aforementioned Fifth Amendment guarantee.
Thats one kind of taking. But the other kind of taking is perhaps a greater threat to property rights because it is more subtle and insidious: regulatory takings.
In a regulatory taking, the government simply adopts regulations that have the effect of restricting the use and value of the property, rather than outright seizing the property. Regulatory takings include things like severe environmental restrictions, outlawing otherwise legal uses, or requiring that the owner allow members of the public on their land.
And critically, even where a regulation severely limits the uses of the property or seriously devalues it, the government does not recognize any obligation to provide the owner with compensation. In such cases, officials will typically say they are only regulating property, not taking it, even though from the owners perspective, the effects on use or value are so severe that government might as well have taken it through eminent domain.
As it turns out, these regulatory takings are eminent domain in all but name, as PLF has proven in court repeatedly.
Nearly a century ago, in Pennsylvania Coal Company v. Mahon, the U.S. Supreme Court recognized the governments constitutional obligation to pay just compensation when it regulates property so severely that it has a devastating effect on the owners use or value.
PLF has drawn on that critical precedent, as well as the language of the Fifth and Fourteenth Amendments to the Constitution, when representing property owners in takings cases, including Supreme Court victories in Nollan v. California Coastal Commission, Knick v. Township of Scott, Pennsylvania, and other cases.
In the most recent example, Cedar Point Nursery v. Hassid, a case now pending at the Supreme Court, PLF represents a California nursery that is being forced by state labor regulations to open its land and allow union representatives on the property to make their pitch to workers.
But what about the owners right to tell others to keep out? Dont California property owners have that right, and why dont Californias rules recognize that there are other places where union organizers can reach these workers just as easily? If California wants to use Cedar Points land as a venue for labor organizing, isnt that essentially the same thing as a taking by eminent domain?
Those are the very questions at the heart of Cedar Point Nurserys challenge to the State of California, in which PLF is arguing that the states union access rule amounts to yet another form of regulatory taking. In so doing, well be adding a new chapter to the long defense of private property rightsa story thats been in development for some two and a half centuries.
- Trump Judge Casts Deciding Vote to Excuse Clear Violation by Police of Black Man's Fifth Amendment Rights: Confirmed Judges, Confirmed Fears - People... - May 11th, 2021
- If the Devil of the WTO IP Waiver Is in the Details, What Are the Details? - JD Supra - May 11th, 2021
- Owens v. Brown: How The Navy's Women Won the Right to Serve at Sea - The Maritime Executive - May 11th, 2021
- Why Is the Justice Department Trying To Punish Derek Chauvin Twice? - Reason - May 11th, 2021
- Voice of the People | | hastingstribune.com - Hastings Tribune - May 11th, 2021
- Frontenacs to pick fifth overall in OHL Priority Selection - The Kingston Whig-Standard - May 11th, 2021
- Trial hits snag for convicted murderer charged in another deadly Youngstown shooting - WKBN.com - April 29th, 2021
- Convention of states blocked in Legislature | netnebraska.org - NET Nebraska - April 29th, 2021
- Derek Chauvin Trial: Updates The Spectator - The Spectator - April 29th, 2021
- Morries Hall and the right not to incriminate yourself (Fifth Amendment) - MSR News Online - April 11th, 2021
- Man who was with George Floyd during his arrest pleads the Fifth amid Chauvin trial - KARE11.com - April 11th, 2021
- Floyd's Friend Invokes 5th Amendment Before Testimony Resumes in Chauvin Trial - Voice Of Alexandria - April 11th, 2021
- Officers take the stand on training and protocol; Floyd's friend fears self-incrimination - WXOW.com - April 11th, 2021
- Today's Headlines and Commentary - Lawfare - Lawfare - April 11th, 2021
- What Is the Second Amendment? | Second Amendment Rights - Reader's Digest - April 11th, 2021
- Free Webinar: Battling Deep Fakes and Misinformation Media's Role and Responsibility - StreetInsider.com - April 11th, 2021
- Virginia Beach police bought the technology to automatically turn on body cameras when a gun is drawn, but it doesn't work - 13newsnow.com WVEC - March 31st, 2021
- Analysis | Hefazat-e Islam, the group behind anti-Modi protests in Bangladesh - The Hindu - March 31st, 2021
- Question of fear or vengeance at core of Lawton murder trial - The Lawton Constitution - March 31st, 2021
- Professor's New Casebook Is First to Look at Law of the Police - UVA Today - March 31st, 2021
- Arbitration. Enforcement of Award. Foreign Sovereign Immunities Act. Personal Jurisdiction. District court refuses to enforce $20 million award... - March 31st, 2021
- SITEONE LANDSCAPE SUPPLY, INC. : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an... - March 31st, 2021
- City issues order to force Columbus police officers to give evidence in protest probe - The Columbus Dispatch - March 31st, 2021
- Separation of judiciary still elusive in Bangladesh - newagebd.net - March 31st, 2021
- The Fight Over Minimum Wage Has a Long History in the US. Here's What to Know About It - NBC 6 South Florida - March 31st, 2021
- USCIS: Uvarov's request for injunctive relief moot; passport returned and he has departed NMI - Marianas Variety - March 31st, 2021
- Lawyer tries to throw out confession of Killeen woman charged in Vanessa Guillen case - The Killeen Daily Herald - March 31st, 2021
- Bill would protect juveniles' Fifth Amendment rights | Serving Carson City for over 150 years - Nevada Appeal - March 21st, 2021
- SCOTUS to Decide Whether There Is a Fundamental Right to Kick People Off Your Property - Law & Crime - March 21st, 2021
- 5th Amendment - Definition, Examples, Cases, Processes - March 7th, 2021
- Ghost of March 4 inauguration back to haunt us - Olean Times Herald - March 7th, 2021
- What you need to know as Chauvin trial starts Monday - TwinCities.com-Pioneer Press - March 7th, 2021
- Mensah to 'plead the 5th' if forced to testify in new hearing on deadly shooting - WISN Milwaukee - February 27th, 2021
- CPAC heavy hitters to highlight constitutional freedoms, allege 'left hates the Bill of Rights' - Home - WSFX - February 27th, 2021
- Fact Checking Xavier Becerra's Claim That He 'Never Sued Any Nuns' - The Dispatch - February 27th, 2021
- The 5 Trump Amendments to the Constitution - The Atlantic - February 25th, 2021
- A refusal to testify shouldnt be interpreted this way - Leominster Champion - February 25th, 2021
- Blythe vote-buying case referred to Georgia Attorney General - The Augusta Chronicle - February 25th, 2021
- Ex-husband of 'RHONY' events planner pleads Fifth in Peeping Tom suit - Page Six - February 25th, 2021
- Ninth Circuit Upholds Dismissal of Kids Climate SuitHeaded to the Supreme Court? - Lexology - February 25th, 2021
- Justices Won't Hear Fight Over USPTO Fees On Axed Patents - Law360 - February 25th, 2021
- Florida woman charged over threats to FBI asking about Capitol siege - Insider - February 25th, 2021
- Disputes over church property and ACCA ambiguity - SCOTUSblog - February 25th, 2021
- Newsom Looks To Shear Barber's Suit Over COVID-19 Orders - Law360 - February 25th, 2021
- Supreme Court asked to declare the all-male military draft unconstitutional | TheHill - The Hill - February 25th, 2021
- ECC takes on 'Black and Blue: Policing Communities of Color' - WBFO - February 25th, 2021
- Letter: CDC vs. landlords. If director has that much power over private citizens, there's a problem. - The Augusta Chronicle - February 25th, 2021
- Trump is acquitted again, Sen. Ron Johnson sends the wrong message by siding with him - UW Badger Herald - February 25th, 2021
- Harvey Weinstein has been behind bars for a year: What's changed? - USA TODAY - February 25th, 2021
- Fifth Amendment to PREP Act Declaration Expands the Ranks of Health Care Providers Authorized to Administer COVID-19 Vaccines - Lexology - February 8th, 2021
- Dems: The Fifth Amendment against self-incrimination doesn't apply to Trump - ChicagoNow - February 8th, 2021
- Americana Corner: The Bill of Rights: The Fifth Amendment - Bryan County News - February 8th, 2021
- Ex-Con in Fraud Case Takes the Fifth - Arkansas Business Online - February 8th, 2021
- HHS Expands Categories of Persons Covered Under the PREP Act Who Can Administer COVID-19 Vaccine - JD Supra - February 8th, 2021
- Book review: 'The Crooked Path to Abolition' - Bowling Green Daily News - February 8th, 2021
- Republicans seek to play offense in vote-a-rama | TheHill - The Hill - February 8th, 2021
- Letter: Claims of constitutional rights are often wrong - The Durango Herald - February 2nd, 2021
- EU Commission publishes fifth amendment to its Temporary Framework for state aid in relation to the COVID-19 crisis - Lexology - February 2nd, 2021
- Can a Comic Book Contain the Drama and Heat of Activism? - The New York Times - February 2nd, 2021
- Chief Nurse at Wolters Kluwer and Critical Care Nurse Practitioner Discusses HHS Public Readiness and Emergency Preparedness (PREP) Act - Business... - February 2nd, 2021
- Congressional Investigations in the 117th Congress: Choppy Waters Ahead for the Private Sector? - Gibson Dunn - February 2nd, 2021
- The Courts and Healthcare Policy | McGuireWoods Consulting - JDSupra - JD Supra - February 2nd, 2021
- LASD Won't Name Deputies Involved in Killing of Fred Williams III at Otherwise Uninformative Inquest - Streetsblog Los Angeles - February 2nd, 2021
- Xiaomi sues the US government over military blacklisting Just now - Siliconrepublic.com - February 2nd, 2021
- 2020 at the Supreme Court - Lexology - February 2nd, 2021
- FPAA Remembered: In Triangle Football, the Dixie Cup Was the Ultimate Game - Bama Maven - February 2nd, 2021
- Former Rutland cop denied new rape trial after ex-wife, citing perjury concern, declines to provide alibi - Worcester Telegram - February 2nd, 2021
- Are Patents Free for the Taking; or Does the Law Require Just Compensation? - Patently-O - January 29th, 2021
- CIT Dismisses All but One Claim in Section 232 Steel Tariff Dispute - Lexology - January 29th, 2021
- Inquest: Man Killed by Deputies in Willowbrook Was Shot in the Back - NBC Southern California - January 29th, 2021
- 'The Little Things' boasts powerhouse lineup - Post Register - January 29th, 2021
- Meet the People Archives - California Ag Today - January 29th, 2021
- Guest opinion: New Jefferson River flood maps are all wet - Belgrade News - January 29th, 2021
- Betraying Your ChurchAnd Your Party - The Atlantic - January 29th, 2021
- Transcript: The Last Word with Lawrence O'Donnell, 1/18/2021 - MSNBC - January 29th, 2021
- Letter: Halting the Keystone Pipeline is a win for liberty - INFORUM - January 29th, 2021
- Selections from The Dangerous Case of Donald Trump BillMoyers.com - BillMoyers.com - January 29th, 2021
- Mitigating the Risk of Loss of a Delinquent Collateral Asset in the Era of Autonomous Zones - JD Supra - January 19th, 2021
- OPINION | Trump might invoke the 25th Amendment without resigning - Marianas Variety - January 19th, 2021
- Will Joe Biden Issue a Pardon to Donald Trump? - The National Interest - January 19th, 2021