Under the Takings Clause, the government is not allowed to take individual property for the benefit of the public without just compensation. What constitutes “a taking” has been the subject of debate since the very beginning …

The Federal Circuit just affirmed a lower District court’s decision that a salmonella warning does not amount to a government “taking.” The lawyers who represented the growers in this case were really reaching on this one. It’s a fine example of creative advocacy.

The Grower’s Arguments Rejected

Judge Bush rejected the grower’s arguments that the government and public derived a benefit from the alleged taking – a requisite element in any takings finding. More importantly, Judge Bush found that the salmonella warning, although causally linked to the loss of the tomato crop, did not have a “legal effect on the plaintiff’s property interests,” such as a quarantine or recall.

Toe-May-Toe, Toe-Mah-Toe

Predictably, growers countered that the legal effects should not be considered but the real practical consequences of the government action. At that point, the Federal Circuit Court played some sleight of hand with the quote “[t]he fact that the market chooses to incorporate all available information, without more, cannot form the basis of a regulatory takings claim.”

That is true, and applying the law otherwise would lead to absurd results. Still, one can’t help but feel as if the appellate court indulged in a little “Guns don’t kill people: People kill people” deflection.

Fortunately, the court advised the growers to petition Congress if they want future relief from substantially similar facts in the future.

  • Gov’t Raisin Program Is Unconstitutional Taking, Court Rules (FindLaw’s Supreme Court of the U.S. Blog)
  • GM and Chrysler Dealers’ Takings Claims Survive Dismissal (FindLaw’s Federal Circuit Blogs)
  • Attorney’s Disbarment Is Not an Actionable ‘Judicial Taking’ (FindLaw’s Federal Circuit Blogs)

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