Faegre Drinker Biddle & Reath LLP

On June 23, 2021, the U.S. Supreme Court decided Cedar Point Nursery et al. v. Hassid et al., holding that a California regulation that granted labor organizations a right to take access to an agricultural employer’s property to solicit support for unionization constitutes a per se physical taking.

The plaintiffs are agricultural employers who filed suit against several board members of the United Farm Workers in their official capacity, requesting declaratory and injunctive relief, based on their contention that the California regulation that grants organizers access to their private property — for up to three hours per day, 120 days out of the year — to solicit support for unionization is an unconstitutional per se physical taking under the Fifth and Fourteenth Amendments.

The District Court denied the growers’ motion for preliminary injunction and granted the Board’s motion to dismiss, reasoning that the regulation did not “allow the public to access their property in a permanent and continuous manner for whatever reason.” The district court reasoned that the access regulation was instead subject to evaluation under the multifactor balancing test under Penn Central, which the growers did not attempt to satisfy. A divided Ninth Circuit panel agreed, reasoning that the regulation placed limits on who could access the growers’ private property and when, and that, coupled with the fact that the growers did not contend that they were deprived of all economically beneficial use of their property, meant that the regulation could not be a per se physical taking.

The Supreme Court reversed, holding that the district court and Ninth Circuit applied the wrong standard, because “[t]he essential question is … whether the government has physically taken property for itself or someone else — by whatever means — or has instead restricted a property owner’s ability to use his own property.” The Court found that the “access regulation appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking” as it “appropriates for the enjoyment of third parties the owners’ right to exclude.”

The Court noted that, “[g]iven the central importance to property ownership of the right to exclude, it comes as little surprise that the Court has long treated government-authorized physical invasions as takings requiring just compensation.” The Court distinguished its decision from other instances — such as distributing leaflets or access to public property — in which there had been only a restriction on use. It also observed that the duration of the appropriation here bore only on the amount of compensation that is necessary, not whether there was a taking in the first place.

Justice Roberts delivered the opinion of the Court, joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barret. Justice Breyer filed a dissenting opinion, joined by Justices Sotomayor and Kagan.

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