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Cedar Point Nursery v. Hassid (US 20-107 06/23/2021) Right to Take Access to Agricultural Employers’ Property for Union Organizing/Pe Se Physical Taking 

A California regulation grants labor organizations a “right to take access” to an agricultural employer’s property in order to solicit support for unionization. Cal. Code Regs., tit. 8, §20900(e)(1)(C). The regulation mandates that agricultural employers allow union organizers onto their property for up to three hours per day, 120 days per year. Organizers from the United Farm Workers sought to take access to property owned by two California growers—Cedar Point Nursery and Fowler Packing Company. The growers filed suit in Federal District Court seeking to enjoin enforcement of the access regulation on the grounds that it appropriated without compensation an easement for union organizers to enter their property and therefore constituted an unconstitutional per se physical taking under the Fifth and Fourteenth Amendments. The District Court denied the growers’ motion for a preliminary injunction and dismissed the complaint, holding that the access regulation did not constitute a per se physical taking because it did not allow the public to access the growers’ property in a permanent and continuous manner. A divided panel of the Court of Appeals for the Ninth Circuit affirmed, and rehearing en banc was denied over dissent.

Held: California’s access regulation constitutes a per se physical taking. Pp. 4–20.

(a) The growers’ complaint states a claim for an uncompensated taking in violation of the Fifth and Fourteenth Amendments. Pp. 4–17.

(1) The Takings Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, provides: “[N]or shall private property be taken for public use, without just compensation.” When the government physically acquires private property for a public use, the Takings Clause obligates the government to provide the owner with just compensation. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U. S. 302, 321. The Court assesses such physical takings using a per se rule: The government must pay for what it takes. Id., at 322.

A different standard applies when the government, rather than appropriating private property for itself or a third party, instead imposes regulations restricting an owner’s ability to use his own property. Id., at 321–322. To determine whether such a use restriction amounts to a taking, the Court has generally applied the flexible approach set forth in Penn Central Transportation Co. v. New York City, 438 U. S. 104, considering factors such as the economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the government action. Id., at 124. But when the government physically appropriates property, Penn Central has no place—regardless whether the government action takes the form of a regulation, statute, ordinance, or decree. Pp. 4–7.

(2) California’s access regulation appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking. Rather than restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties (here union organizers) the owners’ right to exclude. The right to exclude is “a fundamental element of the property right.” Kaiser Aetna v. United States, 444 U. S. 164, 179–180. The Court’s precedents have thus treated government-authorized physical invasions as takings requiring just compensation. As in previous cases, the government here has appropriated a right of access to private property. Because the regulation appropriates a right to physically invade the growers’ property—to literally “take access”—it constitutes a per se physical taking under the Court’s precedents. Pp. 7–10.

(3) The view that the access regulation cannot qualify as a per se taking because it does not allow for permanent and continuous access 24 hours a day, 365 days a year is insupportable. The Court has held that a physical appropriation is a taking whether it is permanent or temporary; the duration of the appropriation bears only on the amount of compensation due. See United States v. Dow, 357 U. S. 17, 26. To be sure, the Court in Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, discussed the heightened concerns associated with “[t]he permanence and absolute exclusivity of a physical occupation” in contrast to “temporary limitations on the right to exclude,” and stated that “[n]ot every physical invasion is a taking.” Id., at 435, n. 12. But the regulation here is not transformed from a physical taking into a use restriction just because the access granted is restricted to union organizers, for a narrow purpose, and for a limited time. And although the Board disputes whether the access regulation appropriates an easement as defined by California law, it cannot absolve itself of takings liability by appropriating the growers’ right to exclude in a form that is a slight mismatch from state property law.

PruneYard Shopping Center v. Robins, 447 U. S. 74, does not cut against the Court’s conclusion that the access regulation constitutes a per se taking. In PruneYard the California Supreme Court recognized a right to engage in leafleting at the PruneYard, a privately owned shopping center, and the Court applied the Penn Central factors to hold that no compensable taking had occurred. 447 U. S., at 78, 83. PruneYard does not establish that limited rights of access to private property should be evaluated as regulatory rather than per se takings. Restrictions on how a business generally open to the public such as the PruneYard may treat individuals on the premises are readily distinguishable from regulations granting a right to invade property closed to the public. Pp. 10–15.

(4) The Court declines to adopt the theory that the access regulation merely regulates, and does not appropriate, the growers’ right to exclude. The right to exclude is not an empty formality that can be modified at the government’s pleasure. Pp. 15–17.

(b) The Board’s fear that treating the access regulation as a per se physical taking will endanger a host of state and federal government activities involving entry onto private property is unfounded. First, the Court’s holding does nothing to efface the distinction between trespass and takings. The Court’s precedents make clear that isolated physical invasions, not undertaken pursuant to a granted right of access, are properly assessed as individual torts rather than appropriations of a property right. Second, many government-authorized physical invasions will not amount to takings because they are consistent with longstanding background restrictions on property rights, including traditional common law privileges to access private property. See Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1028–1029. Third, the government may require property owners to cede a right of access as a condition of receiving certain benefits, without causing a taking. Under this framework, government health and safety inspection regimes will generally not constitute takings. In this case, however, none of these considerations undermine the Court’s determination that the access regulation gives rise to a per se physical taking.

Pp. 17–20. 923 F. 3d 524, reversed and remanded.

ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. KAVANAUGH, J., filed a concurring opinion. BREYER, J., filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined.