Takings: Miller v. Schoene. Why isn't it a per se taking?

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joetheplumber
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Takings: Miller v. Schoene. Why isn't it a per se taking?

Postby joetheplumber » Thu May 16, 2013 4:58 am

So the holding that we learn is that when the state said to cut down those cedar trees, there was no taking because it was an abatement of nuisance. I get the exception but isn't chopping down trees a physical intrusion such that it is per se a taking like Lorrreto? How is cutting down a tree not a physical intrusion... for which just compensation must be paid

09042014
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Re: Takings: Miller v. Schoene. Why isn't it a per se taking?

Postby 09042014 » Thu May 16, 2013 5:01 am

joetheplumber wrote:So the holding that we learn is that when the state said to cut down those cedar trees, there was no taking because it was an abatement of nuisance. I get the exception but isn't chopping down trees a physical intrusion such that it is per se a taking like Lorrreto? How is cutting down a tree not a physical intrusion... for which just compensation must be paid


I've never read the case but is the abatement of nuisance an exception for takings, even per se takings? Sure seems like it should be.

joetheplumber
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Re: Takings: Miller v. Schoene. Why isn't it a per se taking?

Postby joetheplumber » Thu May 16, 2013 5:12 am

Desert Fox wrote:
joetheplumber wrote:So the holding that we learn is that when the state said to cut down those cedar trees, there was no taking because it was an abatement of nuisance. I get the exception but isn't chopping down trees a physical intrusion such that it is per se a taking like Lorrreto? How is cutting down a tree not a physical intrusion... for which just compensation must be paid


I've never read the case but is the abatement of nuisance an exception for takings, even per se takings? Sure seems like it should be.


Are you sure? Thats what I am trying to get at. Is abatement of nuisance an exception even for per se takings like Lorreto? It seems impossible because lets say a factory is a nuisance and the government just comes in and occupies it and takes it away. They can't claim this is a nuisance and not pay just compensation.

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A. Nony Mouse
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Re: Takings: Miller v. Schoene. Why isn't it a per se taking?

Postby A. Nony Mouse » Thu May 16, 2013 9:25 am

It's an old case so I have no idea to what extent it still applies, but it seems to me pretty specific to its facts - e.g. the taking is necessary to protect the public interest in preserving the state's apple orchards (by protecting them from cedar rust), which here outweighs the private interest in the property. The court rooted the state's ability to do this in its police powers to protect the public. There wouldn't be a comparable public interest in demolishing a factory (unless it was a former nuclear power plant emitting radiation to the danger of the public, maybe?), so the analogy doesn't work.

A lot of the time takings are for economic activities (the state wants to reroute a highway) that have a public benefit but aren't protecting the public per se so this wouldn't support the government not paying just compensation for those things. I think the takeaway on Miller is that if the government is acting to protect a public interest, that changes the analysis in a takings case. (Not that infecting apple trees is exactly about public safety, but the point was that the apple trees are a huge part of the Virginia economy and the only way to protect them is to keep cedar trees cleared from the apple orchards, so the state made a legitimate choice.)

Also, the owners of the trees got to keep/use the felled trees, which isn't nothing.

(Plus, keep in mind Miller was decided long before Loretto, so standards were doubtless different. But FWIW, cutting down a tree isn't a permanent physical occupation like in Loretto.)

nyg22
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Re: Takings: Miller v. Schoene. Why isn't it a per se taking?

Postby nyg22 » Thu May 16, 2013 5:46 pm

joetheplumber wrote:
Desert Fox wrote:
joetheplumber wrote:So the holding that we learn is that when the state said to cut down those cedar trees, there was no taking because it was an abatement of nuisance. I get the exception but isn't chopping down trees a physical intrusion such that it is per se a taking like Lorrreto? How is cutting down a tree not a physical intrusion... for which just compensation must be paid


I've never read the case but is the abatement of nuisance an exception for takings, even per se takings? Sure seems like it should be.


Are you sure? Thats what I am trying to get at. Is abatement of nuisance an exception even for per se takings like Lorreto? It seems impossible because lets say a factory is a nuisance and the government just comes in and occupies it and takes it away. They can't claim this is a nuisance and not pay just compensation.


Nuisance or "traditional principles of property" (w/e the f that means) are exceptions to Lucas. In Lucas, court remanded for a determination whether the regulation could be passed under traditional state nuisance law. If I recall, Lucas ended up winning on remand. I don't think there are any exceptions to the Loretta test, but Miller seems to fall under the Lucas line of cases b/c the taking claim arises from legislature which (arguably) deprives all economic value.

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Re: Takings: Miller v. Schoene. Why isn't it a per se taking?

Postby 3|ink » Fri May 17, 2013 12:25 am

Because the court changes its mind.




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