Excerpt from Guidance on "Takings" from the Department of Justice
The term “agency,” when used in these Guidelines, shall
refer to any of the departments, corporations, or other
establishments identified in this section.


IV. DEFINITIONS

A.   "Private Property”:  “Private Property” includes all
property protected by the Fifth Amendment to the United
States Constitution, including, but not limited to
real and personal property and tangible and intangible
property.

B.   “Takings Implication”: Any policy or action to which
the Executive Order applies that, upon examination by
the decisionmaker under Section V(D)(3), infra, appears
to have an effect on private property sufficiently
severe as to effectively deny economically viable use
of any distinct legally protected property interest to
its owner, or to have the effect of, or result in, a
permanent or temporary physical occupation, invasion,
or deprivation, shall be deemed to have a takings
implication for purposes of the Executive order and
these Guidelines.

C.   “Significant Takings Implications”:   For purposes of the
Executive Order and these Guidelines, a
“significant takings implication” exists when, on the
basis of available information, the decisionmaker
concludes as to any policy or action with a takings
implication that:

1.   The proposed policy or action poses a substantial
risk that a taking of private property may result,
or

2.   Insufficient information as to facts or law exists
to enable an accurate assessment of whether significant
takings consequences may result from the proposed
policy or action.

D.   “Legislation”: For purposes of an agency's evaluation
and reporting responsibilities under the executive
order and these guidelines, “legislation” is limited to
those agency legislative policies and actions that are
subject to coordination and clearance by the Office of
Management and Budget pursuant to Circular No. A-19,
Revised, or succeeding management directives issued by
the Office of Management and Budget on legislative
coordination and clearance.   Examples of the types of
legislative submissions subject to review include an ......

.......
B    The Nature of a Taking
 
Takings may occur when permanent or temporary
government actions result in the physical occupancy of
property, the physical invasion of property, or the
regulation of property.

1.  Physical Occupancies

Permanent or temporary physical occupancy is the
most traditional type of taking and is therefore
the most familiar and most easily recognized as a
taking. As a general rule, where a physical
occupancy exists no balancing of the economic
impact on the owner and the public benefit will
occur in the taking analysis. Examples of
physical occupancy takings include not only
formal condemnation exercises, such as the taking
of land to build a highway, but also utility
easements and access easements. [See Appendix to
Guidelines, Section III(E)(2)]

2.   Physical Invasions

As a general rule, physical invasions of property,
as distinguished from physical occupancies, may
also give rise to a taking where the invasions are
of a recurring and substantial nature. Examples
of physical invasion takings include, among
others, flooding and water related intrusions and
overflight or aviation easement intrusions. [See
Appendix to Guidelines, Section III[(E)(2)]

3.  Regulatory Takings

a.    Like physical occupations or invasions,
regulation which affects the value, use, or
transfer of propertv may constitute a taking
if it goes too far.  Pennsylvania Coal
Company v. Mahon, 260 U.S.393 (1922); Hodel
v. Irving, 107 S. Ct. 2076 (1987); Nollan v.
California Coastal Commission, 107 S. Ct.
3141 (1987). Regulation has gone too far and
may result in takings liability if:

i.  The regulation in question does not
substantially advance a legitimate
governmental purpose; it is not enough
that the regulation or action might
rationally advance the purpose purported
to be served; or

ii. In assessing the character of the
government action, the economic impact
of the action on the property interest
involved, the extent to which the
regulation interferes with the reasonable,
investment-backed expectations of
the owner of the property interest, and
other relevant factors, justice and
fairness require that the public, and
not the private property owner, pay for
the public use.   Pennsylvania Coal v.
Mahon, 260 U.S. 393 (1922) ; Penn
Central Transportation Company v. New
York City, 438 U.S. 104 (1978); Agins v.
City of Tiburon, 447 U.S. 255 (1980);
First English Evangelical Lutheran
Church of Glendale v. Los Angeles
County, 107 S. Ct. 2378, 2389, n.10
(1987).

b.   Regulatory actions that closely resemble, or
have the effect of, a physical invasion or
occupation of property are more likely to be
found to be takings. See, Nollan v. California
Coastal Commission, 107 S. Ct. 2076 .
(1987) . The greater the deprivation of use,
the greater the likelihood that a taking
will be found.

c.   Regulation of an individual's property must
not be disproportionate, within the limits of
existing information or technology, to the
degree to which the individual's property use
is contributing to the overall problem.
Thus, regulatory actions designed to compel
public benefits, rather than prevent
privately imposed harms, are also more likely
to be takings.

[See Appendix to Guidelines, Section III (F)]


C.    Special Situations
When implementing a regulatory policy or action and
evaluating the takings implications of that policy or
action, agencies should consider the following special
factors:

CATEGORICAL EXEMPTIONS
        Pursuant to section VI (D) (3) of the Attorney General’s
Guidelines for the Evaluation of Risk and Avoidance of
Unanticipated Takings, the following are designated as
categorical exclusions for agencies and bureaus of the Department
of the Interior:

        (1) Non-legislative actions to which the affected property
owners have consented, to the extent the policies affect only
such consenting owners, including:

(a) policies relating to decisions to purchase, sell,
lease, or provide goods or services (or refusals to
provide such goods or services on grounds of breach of
contract or failure to provide information or complete
forms required by law), including entry into water
delivery and distribution system contracts and grants-
-in-aid;

(b) decisions to issue or deny a permit based solely on
conditions for which the property owner has voluntarily
applied;

(c) policies conditioning the issuance of a permit upon
compliance with certain conditions, but only to the
extent those conditions are either (i) expressly
required by statute in a manner which leaves no
discretion to the agency or (ii) are among alternative
conditions offered to the applicant from which he may
freely negotiate a choice; and

(d) renewals of outstanding permits upon the same bases
and conditions as ones presently outstanding, or upon
fewer or less intrusive bases and conditions.

        (2) Regulations or permits authorizing the taking,
possession, transportation or use of migratory birds or wildlife,
issued under the Migratory Bird Treaty Act, 16 U.S.C. §§703, et
seq., the National Wildlife Refuge System Administration Act, 16
U.S.C. §§460k, et seq., the Refuge Recreation Act, 16 U.S.C.
§§460k, et seq., the Eagle Protection Act, 16 U.S.C. §§668, et
seq., or the Endangered Species Act, 16 U.S.C. §§1531, et seq.,
provided, that this exception shall not be applicable to any
regulations or permits which restrict the possession,
transportation or use of wildlife already reduced to possession
or ownership.

        (3) Biological opinions issued pursuant to the Endangered
Species Act, 16 U.S.C. §1536(c), where the opinion either:

(a) governs only the use of Federal land by Federal
personnel;
(b) finds no jeopardy is likely to result; or
(c) proposes alternatives which have been
accepted by the applicant.
      APPENDIX IV
        (4) Listings of endangered and threatened species under the
Endangered Species Act, 16 U.S.C. §1533(c), where the species
involved either:
(a) is found solely on Federal lands not subject to
leasehold or similar perfected interests, or an private
lands whose owner has agreed to the proposed listing;
or
(b)  is not found within the United States.
        (5)  The  denial of permits to import species into, or export
species from, the United States, under:
(a)  the Endangered Species Act, 16 U.S.C. §1539(a),
provided this exclusion does not apply to the denial
of hardship exemption pursuant to 16 U.S.C. §1539(b)
to owners of property interests in species reduced to
possession prior to their listing pursuant to 16 U.S.C.
§1533, or to the modification of regulations under 16
U.S.C. §1539 (h) (2) ,

(b) the Endangered Species Act, 16 U.S.C. §1539(e),
provided this exclusion does not apply to the proposed
regulation of Alaska Natives pursuant to 16 U.S.C.
§ 1539 (e)(4) ;

(c) the Marine Mammal Protection Act, 16 U.S.C. §1361,
et seq, provided this exclusion does not apply to:
the modification, suspension, or revocation under 16
U.S.C. §1374(e)(1)(A) of any permit; or, reposed
regulation of Alaska Natives pursuant to 16 U.S.C.
§1371(b); and

(d) the Eagle Protection Act, 16 U.S.C. §668, et seq.



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