During California’s strawberry harvesting season in the summer of 2015, union activists entered a nursery’s property under the authority granted by a California regulation that allows union organizers to enter the private property of agriculture businesses for three hours at a time, 120 days per year, to recruit potential new members.  The organizers entered the nursery’s property with bullhorns in hand, distracting and intimidating hundreds of employees who were preparing young strawberry plants for shipment.  For three consecutive days during the same summer, the organizers also attempted to enter the private property of a family-owned grower and shipper of fresh produce.

Cedar Point Nursery and Fowler Packing Company responded to the disruption of their businesses by challenging California’s union access regulation as violating the U.S. Constitution’s Fifth Amendment, which bars the government from taking private property without compensation.  The case—Cedar Point Nursery v. Hassid—involves the fundamental question whether the government must pay a property owner when it takes a temporary easement on private property to facilitate union organizing activities.  A 2-1 panel of the Ninth Circuit Court of Appeals held that allowing union organizers access to agricultural employees on employers’ private property is governed by Penn Central’s multi-factor regulatory takings standards and is not a per se categorical taking under Loretto or Lucas.

The Supreme Court heard oral argument in Cedar Point Nursery on March 22, 2021.  The attorney representing the petitioners argued that an access easement that takes the right to enter, occupy, and use another’s private property effects a per se physical taking under the Fifth Amendment.  He also explained that any time limitations placed on access go towards the just compensation due and not whether a taking has occurred.  California’s solicitor general defended the regulation, arguing that it did not amount to a per se taking because the Court has reserved such treatment for “extreme regulations” that are the functional equivalent of the government directly appropriating private property.  The state’s argument focused on preserving the confusing status of takings law, in which there are only two narrow categories of per se regulatory takings, the Loretto category, for regulations authorizing a permanent and continuous physical invasion, which the Court said effectively destroys the owner’s rights in their property, and the Lucas category, for regulations that eliminate all economically beneficial uses.

The attorneys faced tough questions from all justices, including Justice Thomas, who rarely asks questions during oral argument.  But Justice Thomas has a deep and longstanding interest in takings law and didn’t pass up the opportunity to question the petitioners and the respondents.

Justice Thomas wanted to know how the access regulation could be distinguished from routine government inspections and administrative searches.  “What would be a visit,” Justice Thomas asked Mr. Thompson, “that would be sufficiently reasonable that it would not violate . . . the Fifth Amendment takings clause?”

The petitioners responded that “any time the government undertakes its power to search, it would not be a taking.  It could be an unconstitutional search under this Court’s Fourth Amendment jurisprudence.  But, if it is an unconstitutional search, then, by definition, it cannot be a taking because the government doesn’t have authority to undertake that action.”

Justice Thomas was also interested in the state’s view of how related the opportunity to be on private property must be to the business operation to be constitutional.  “For example, could you have the exact same requirement,” he asked the state, “except during non-business hours for the property to be available for training of the National Guard . . . or the state police?  Since it’s open property, just simply say for three hours a day, not more than 120 days a year, but certainly not to interfere with the business, the state police could train there?”

The state conceded this “would be a stronger claim under the ad hoc inquiry.”  “It’s a pretty substantial interference with anybody’s investment-backed expectations.  You don’t expect your property to be a training ground for the state police.  And it’s going to be a substantially . . . severe physical intrusion.”

Looking ahead, we see the makings of a Supreme Court decision that will likely favor the petitioners.  But it is far more difficult to predict whether the Court will issue any kind of a broad, clear, or useful takings rule.  And we note that the Court has been presented with many opportunities to clarify key aspects of its muddled takings jurisprudence and repeatedly failed to do so (see, e.g., Bridge Aina Le’a, LLC v. Hawaii Land Use Commission, 592 U. S. __ (2021) (Thomas, J., dissenting from denial of petition for certiorari) or issued opinions that made things worse (see, e.g., Murr v. Wisconsin, 582 U. S. __, __ (2017) (Roberts, C.J., dissenting).  Cedar Point Nursery provides the Court another significant occasion to provide a definitive rule in an important property rights case and we would be delighted to see the opinion written by Justice Thomas, who has demonstrated his facility with these complicated issues repeatedly.


Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.

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