Posted by: Patricia Salkin | July 31, 2021


This post was authored by Edward J. Sullivan, Esq.

              Cedar Point Nursery v. Hassid, No. 20-107, 594 U.S. ___ (2021) was Plaintiff’s challenge to an administrative rule promulgated under a California statute, the California Labor Relations Act of 1975 (Cal. Lab. Code secs. 1152-53) that required access to the property of an agricultural employer by union personnel to solicit support for unionization for three hours per day in 120 days of the year. The Supreme Court took the case to determine whether the access requirement constituted a physical taking, for which just compensation was required under the Fifth and Fourteenth Amendments.

              When Plaintiffs, agricultural growers and processors, were threatened with unfair labor practice sanctions under the 1975 Act, they brought suit in federal court for a declaration and injunctive action, inter alia contending a taking. The trial court, using the multi-factor balancing test of Penn Central Transp. Co. v. New York City, 438 U.S. 104, 125 (1978) dismissed the claim, under Penn Central. Plaintiffs claim Penn Central does not apply to a physical taking claim. A divided Ninth Circuit affirmed and the Supreme Court granted certiorari.

              The Court characterized the claim as a physical invasion, for which compensation from a public agency must be provided for invasion or occupation of property, even if that agency does not acquire title. For taking claims based on regulatory overreach, the three-factor Penn Central analysis applies; however, for most physical invasions, the test is rather straightforward:

              The essential question is not, . . . , whether the government action at issue comes garbed as a regulation (or statute, or ordinance, or miscellaneous decree). It is whether the government has physically taken property for itself of someone else – by whatever means – or instead has restricted a property owner’s ability to use his own property. . . . Whenever a regulation results in a physical appropriation of property, a per se taking has occurred, and Penn Central has no place.

A property right in real estate includes “the right to exclude,” which is “one of the most essential sticks in the bundle of right that are commonly characterized as property.” Kaiser Aetna v. United States, 444 U.S. 164, 176, 179-80 (1979). Thus, the uncompensated right for union organizers to take access to the growers’ and producers’ real property stated a taking claim under the federal constitution even if the state authorization be given only to certain classes of people and on a temporary basis (amatter that better relates to the amount of compensation due). See also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (public agency requirement for permanent cable box installation on Plaintiff’s property constituted a physical invasion and per se taking).

The Court added that its “intuitive approach” that requiring access to third parties would otherwise be a taking under California property law, absent the statute and regulation, was the proper one, whether the taking occurred by eminent domain or physical invasion. The Court also distinguished the taking claims rejected in PruneYard Shopping Center v. Robbins, 447 U.S. 74 (1980), noting that the shopping center invited shoppers to use its property, while the Plaintiffs in this case made no such invitation.

The Court rejected fears that its decision would bring a host of claims that any physical invasion would be deemed a taking, making the distinction between isolated trespasses, which would be seen as individual torts, rather than an appropriation of property, although repeated trespasses add support to such a claim. See Arkansas Game and Fish Commission v. United States, 568 U.S. 23 (2012). Moreover, some invasions do not involve property rights – such as entering property to abate a nuisance, as there was no right to maintain the same. Similarly, there is no right to prevent entry onto property in the event of necessity (e.g., to prevent commission of a crime, rescue persons from a fire, serve a search warrant or undertake health and safety inspections). Further, the imposition of lawful development conditions under Nollan and Dolan would not implicate the Fifth Amendment. The Court concluded:

None of these considerations undermine our determination that the access regulations here give rise to a per se physical taking. Unlike a mere trespass, the regulation grants a formal entitlement to physically invade the growers’ land. Unlike a law enforcement search, no traditional background principle of property law requires the growers to admit union organizers onto their premises.  And unlike the standard health and safety inspections, the access regulation is not germane to any benefit provided to agriculture employers or any risk posed to the public. . . .  The access regulation amounts to simple appropriation of private property.

The Ninth Circuit decision was reversed and remanded for further proceedings consistent with the majority opinion.

Justice Kavanaugh wrote a concurring opinion that dealt with his views on interpreting a previous National Labor Relations Board case, NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), in which the Court found no constitutional violation in the NLRB allowing union organizers in a situation in which the workers lived on company property and there were no other means of access to them, which was not the situation in the instant case.

Justice Breyer, joined by Justices Kagan and Sotomayor, dissented, contending there was no “physical appropriation” of Plaintiffs’ property and that the Arkansas Game and Fish Commission approach of determining whether physical invasions were trespasses or those physical invasions prohibited by the Fifth Amendment should be used and suggesting the three-factor Penn Central analysis was appropriate to determine whether the regulation goes “too far.” The dissent notes that the Court’s decision puts many routine government-authorized incursions onto private property into question. In this case, the public agency did not appropriate private property for its own use, nor authorize a permanent physical invasion, nor create an interest in land, such as an easement (distinguishing this case from Pruneyard, Nollan, and Loretto). The dissent gave much attention to whether the invasion were permanent or temporary and suggested that ambiguous cases be decided under the Penn Central analysis, rather than the per se analysis applied in this case. The dissent noted the majority’s view that application of its new test had several recognized exceptions, suggesting the majority might have “substituted a new, complex legal scheme for a comparatively simpler old one”, and posing questions as to how these exceptions may be applied. Finally, the dissent said that the injunctive remedy was unavailable, because, under existing case law, there was a compensation remedy that Plaintiffs did not seek. Finally, Justice Breyer poses some practical concerns:

              . . . We live together in communities. . . .  Modern live in these communities requires different kinds of regulation. Some, perhaps many, forms of regulation require access to private property (for government officials or others) for different reasons and for varying periods of time. Most such temporary-entry regulations do not go “too far.” And it is impractical to compensate every property owner for any brief use of their land. As we have frequently said, “[g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.”

Time will tell whether those cases at the margins will pose problems for government administration. Chief Justice Roberts’ majority opinion suggests a bright line to separate mere trespasses from physical invasions requiring payment of just compensation or invalidity. But there is ample reason for skepticism.

Cedar Point Nursery v. Hassid, No. 20-107, 594 U.S. ___ (2021).

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