Does an access regulation promulgated by the California Agricultural Relations Board constitute an unconstitutional governmental taking under the Fifth Amendment because it allows union organizers to speak to agricultural workers on their employer’s land at specified times during certain periods of the year?
This case asks the Supreme Court to decide whether a state access regulation that requires agricultural employers to allow union organizers to enter their property to speak with their employees during certain parts of the workday constitutes a governmental taking of the employer’s private property without just compensation. Cedar Point Nursery and Fowler Packing Company contend that allowing union organizers on their land is a per se regulatory taking because it is essentially the same as a permanent physical occupation of the employer’s land for a public purpose, and without compensation, this taking is unconstitutional under the Fifth Amendment. Victoria Hassid, the Chair of the California Agricultural Labor Relations Board that promulgated the regulation at issue, argues that only narrow categories of regulations have been recognized as per se regulatory takings and that if the Court expanded the categories to include this access regulation, it would imperil many existing state and federal regulations. The outcome of this case has serious implications for agricultural workers’ access to information about labor unions, existing state and federal regulations that allow access to private property, and the rights enjoyed by private property owners.
Questions as Framed for the Court by the Parties
Whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment.
In 1975, California passed the Agricultural Labor Relations Act (“ALRA” or “Act”), which established the Agricultural Labor Relations Board (“ALRB” or “Board”). Cedar Point Nursery v. Shiroma at 526. The ALRB found that there were few opportunities for unions to communicate with agricultural workers, which interfered with the workers’ right to organize. Id. at 527. Based on this finding, the Board promulgated an access regulation which allowed union organizers to approach agricultural workers under limited circumstances while the workers were physically present on their employer’s property. Id. Under the regulation, labor organizers can visit the employer’s property after providing the employer and a regional office with notice. Id. at 528. Union organizers can visit an employer’s property for four thirty-day periods a year, and only for three one-hour periods: one hour before the start of work, up to one hour during workers’ lunch break, and one hour after the end of work. Id.
Two separate incidents led the two petitioners, Cedar Point Nursery (“Cedar Point”) and Fowler Packing Company (“Fowler”), to bring this action against the respondent, Victoria Hassid (“Hassid”) in her official capacity as chair of the ALRB. Id. at 528–29. Cedar Point raises strawberry plants that are sold to strawberry producers. Id. at 528. Cedar Point has 400 seasonal workers and 100 full-time workers: the seasonal workers are housed at hotels, and none of Cedar Point’s agricultural workers live onsite. Id. On October 29, 2015, without providing the required notice, union organizers from the United Farm Workers of America (“UFW”) allegedly entered Cedar Point’s property early in the morning. Id. at 528–29. Thereinafter, Cedar Point accused UFW’s organizers of using bullhorns to “disrupt work,” and “distract and intimidat[e] workers,” and some workers “joined the UFW organizers in protest.” Id. at 529. Cedar Point brought charges against UFW for violating the access regulation and in turn, UFW brought charges against Cedar Point for unfair labor practices. Id. Cedar Point states that it would like to exclude UFW organizers from its property in the future, but is potentially unable to under the access regulation. Id.
The other petitioner, Fowler, is a “large-scale shipper of table grapes and citrus” that employs between 1,800 and 2,500 agricultural workers in its field operations, and about 500 workers at a nearby packing facility. Id. Like Cedar Point’s employees, Fowler’s employees do not live on the property. Id. UFW’s organizers were allegedly unable to access Fowler’s property during three days in July 2015, and so UFW brought an unfair labor practice charge against Fowler with the Board. Id. While UFW withdrew the charges, Fowler also argues that it would prefer to exclude “union trespassers” from its property but cannot because of the access regulation. Id.
Together, Cedar Point and Fowler (“Growers”) sued the Board for declaratory and injunctive relief under 42 U.S.C. § 1983, seeking an injunction to prevent the Board from enforcing the access regulation against them. Id. They argued that by enforcing the access regulation against them, the Board is taking their property in violation of the Fifth Amendment, and that the Board also violated the Fourth Amendment’s guarantee against unlawful seizure. Id. The Board dismissed their suit and the Growers appealed to the district court, which also dismissed both of their constitutional claims. Id. On appeal to the Ninth Circuit, the court affirmed the district court’s judgment, holding that the Grower’s complaint should be dismissed. Id. at 536. First, the court found that the Growers did not make out a claim that there was a per se physical taking of the Grower’s property when the access regulation was applied to the Growers. Id. at 524. Second, the court determined that the Growers also did not make out a claim showing that the access regulation affected a Fourth Amendment seizure of the Growers’ property. Id. at 536. The United States Supreme Court granted certiorari on the Growers’ Fifth Amendment claim on November 13, 2020. Brief for Petitioners, Cedar Point Nursery and Fowler Packing Company, Inc. at 2.
DOES THE ACCESS REGULATION CONSTITUTE A PHYSICAL TAKING?
Growers argue that the access regulation, which gives a right of access to union organizers to meet with agricultural employees on the employer’s land during limited times and for specific reasons, qualifies as a physical taking and therefore is in violation of the Fifth Amendment. Brief for Petitioners, Cedar Point Nursery and Fowler Packing Company, Inc. at 17. Specifically, Growers argue that the access regulation qualifies as an easement. Id. at 18. There are two main types of takings under the Fifth Amendment, physical and regulatory takings; the two types undergo different legal analysis. See id. Growers argue that the easement here qualifies as a physical taking, rather than a regulatory taking. Id. The rule that governs physical takings comes from Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, which establishes that the government has a “categorical duty to compensate” property owners when it has physically taken possession of their property interest. Id. at 18–19. Regulatory takings, however, are not subject to this “categorical duty to compensate.” Id. at 19. Rather, regulatory takings are subject to a specific and complex assessment of the facts. Id.
Growers further elaborate that the access regulation qualifies as a physical taking for several reasons. Id. at 20. First, the Growers note that an easement in gross is recognized as a property interest in California, and the access regulation clearly qualifies as an easement. Id. at 20–21. Growers also note that the Court has held that permanent physical intrusions onto property are a per se taking. Id. at 21. Growers use Kaiser Aetna v. United States to show that the Court has required just compensation even when the government’s physical invasion is only an easement. Id. Petitioners also reference Nollan v. Cal. Coastal Comm’n to show that the Court has held that easements qualify as a physical takings despite there being no permanent occupation. Id. at 21–22.
Further, Growers claim that the access regulation’s time restriction does not change this analysis. Id. at 22. Growers’ reasoning for this is: (1) limitations are part of the nature of easements, and limiting the physical takings analysis to just continuous occupation would remove all easements from this category, and (2) the Court has analyzed easements as physical takings before, despite the fact that some of these easements had time restrictions. Id. at 23–26. Petitioners’ note that “time-limited easements” are still physical takings because “limitations are inherent to easements.” Id. at 23. Additionally, Growers claim that the limitations present in the access regulation are not exceptional; rather, the limitations are typical of any other type of easement. Id. at 24. To strengthen their claim that the Court has recognized time-limited easements as physical takings before, the Growers note several specific instances. Id. at 24–26. The Growers refer to a successful takings claims that involved the government’s use of defense guns over property, low flights over private property, and intermittent, but continual, flooding over a property owner’s land. Id. at 24. Petitioners claim that these successful takings claims suggest the Court’s standard for analyzing takings is not based on uninterrupted occupation, but rather on “inevitably recurring” occupation. Id. at 25–26.
Hassid argues that the access regulation is a regulatory taking, and the Court has refrained from creating a definitive test for determining when a regulatory taking violates the Takings Clause. Brief for Respondents, Victoria Hassid et al. at 15. Hassid points out that a physical taking has traditionally only been applied where the government directly takes the owner’s property for its own purpose. Id. at 15. Although Hassid acknowledges that the Court has expanded from this traditional reading, they have mostly abstained from extending physical takings through applying concrete rules. Id.
Hassid contends that there are very few, and very narrow, types of regulatory actions that can qualify as per se takings. Id. at 15–16. The first type is one of “permanent physical occupation” of an owner’s property. Id. at 16. The second type is a regulation that “deprives” a property owner “‘of all economically beneficial uses’ of his property.” Id. at 16. Hassid claims that the access regulation does neither of these things. Id. at 16–18. Additionally, Hassid argues that the Court has specifically rejected analogizing access regulations under the National Labor Relations Act (“NLRA”) (which the access regulation in California is modeled after) to a type of permanent physical occupation. Id. at 18. Hassid argues that Loretto v. Teleprompter Manhattan CATV Corp. demonstrates that the Court has specifically laid out the extreme effects to which regulations rise to the level of takings. Id. Hassid claims that regulations must effectively remove an owner’s rights to her property, including the loss of power to exclude individuals from the property and use the property, and deny a property owner’s power to control her property. Id. Hassid claims that Loretto has established that access regulations do not rise to this level of extreme effects. Id.
Hassid claims that the access regulation does not prevent Growers from owning their property, from excluding people who are not union organizers, or from denying access to union organizers when they have not been authorized to be present. Id. at 23. They further state that the Growers have not claimed that the access regulation has negatively impacted their businesses or reduced the value of their property. Id. at 24.
PER SE RULES AND THE RIGHT TO EXCLUDE
Growers argue that the right to exclude is one of the most basic rights of property owners, and one in which the access regulation blatantly defies. Brief for Petitioners at 28–29. Indeed, Growers claim that the right to exclude is “deeply rooted” in the American legal framework. Id. at 30. Therefore, even an occupation that does not take up much space or seriously interfere with the property owner’s use of the land requires compensation. Id. Growers claim that the only way to protect the fundamental right to exclude is to qualify all easements that affect this right without compensation as a violation of the Fifth Amendment Takings Clause. Id. at 35. Growers address the case PruneYard Shopping Center v. Robins where the Court ruled that a regulation requiring a mall owner to allow speech (even speech he disagreed with) on his property was not a taking; in that case, a California statute required the property owner to allow “certain expressive speech” on his property. Id. at 31–32. Additionally, the Growers claim that PruneYard has been limited to “publicly accessible” property. Id. Growers also argue that since PruneYard, the Court has continuously reaffirmed the right to exclude as a fundamental property right. Id. Therefore, Growers claim that PruneYard is an “anomaly” and one that the Court has subsequently limited in application. Id. at 32.
Hassid contends that the Court has not categorically defined easements as physical takings. Brief for Respondents at 30–31. Hassid notes that the fact that easements are real California property interests does not impact the analysis; if this fact did, it would empower states to define what is a physical taking merely through what qualifies as a real property interest. Id. at 33. Hassid claims that the decision in PruneYard was not as limited as the Growers suggest. Id. at 19–20. Specifically, Hassid claims that the Court in PruneYard only viewed the openness to the public as one consideration in its very context specific analysis of whether the regulation could qualify as a taking. Id. at 19. Hassid also claims that the Court has upheld other regulations that have restricted a property owner’s right to exclude before. Id. at 30–31. Specifically, laws that allow surveying, hunting and fishing, and fishery access that involve some limitation on the right to exclude have not been categorized as a physical taking. Id. at 31–32.
NECESSITY OF THE ACCESS REGULATION
Western Growers Association (“Western”) and other trade organizations, in support of the Growers, contend that the access rule was adopted when there were fewer methods of communication and is no longer necessary for unions to communicate with agricultural employees. See Brief of Amici Curiae Western et al., in Support of Petitioners at 19. Western supports this with statistics that show that agricultural workers no longer migrate as often and generally do not live on their employer’s property. Id. at 20. Further, Western asserts that agricultural employees have access to smartphones to communicate with union organizers and each other. Id. at 21
California Farm Bureau Federation (“Federation”), also in support of the Growers, cites an article which found that the “widespread adoption of mobile phones,” enabled by cheaper and more intuitive phone plans, has “brought more predictability to the informal agricultural job market.” See Brief of Amicus Curiae Federation, in Support of Petitioners at 13. Federation also emphasizes the role of union-operated radio stations: for example, UFW owns three radio stations that operate in different geographic areas of California. Id. at 12. Federation further cites a Board regulation that allows a union to obtain a list of employees and their addresses from their employer. Id. at 11–12.
By contrast, California Rural Legal Assistance, Inc. and other advocacy organizations (“Legal Assistance”), in support of Hassid, argue that agricultural employees remain difficult to access. See Brief of Amici Curiae Legal Assistance, in Support of Respondents at 9. Legal Assistance points to Board findings that computers, cell phones, social media, and radio were “unworkable” communication methods because of language barriers. Id. Legal Assistance contends that many agricultural workers are immigrants who speak different languages and read at fourth-grade to seventh-grade levels, rendering print communication challenging. Id. at 10–11. Legal Assistance also argues that internet access and mobile phones remain luxuries for agricultural workers. Id. at 13.
In addition, UFW, in support of Hassid, counters that California agricultural workers still live migratory lives and constantly change their phone numbers and carriers. See Brief of Amicus Curiae UFW, in Support of Respondents at 12. Also, while employers are supposed to maintain accurate addresses, UFW points to Board decisions that suggest employers’ information is inaccurate. Id.
REGULATION’S IMPACT ON PROPERTY OWNERS
The Chamber of Commerce of the United States of America (“Chamber of Commerce”), in support of Growers, reasons that the Fifth Amendment’s prohibition on uncompensated government takings is crucial for business owners to invest confidently in their property, whereby they contribute to national prosperity. See Brief of Amicus Curiae Chamber of Commerce, in Support of Petitioners at 9. Therefore, Chamber of Commerce argues, the Takings Clause provides assurance that policymakers will consider the costs and benefits of public use to property owners, because the public must compensate property owners for their sacrifice. Id.
Further, the Cato Institute et al., in support of Growers, emphasizes that property owners have a long-recognized right to exclude others from their property. See Brief of Amici Curiae Cato Institute et al., in Support of Petitioners at 7. Cato Institute et al. cites Blackstone on the importance of the right as an “incentive to produce and maintain the ‘things’ of life.” Id. at 8. Cato Institute et al. contends that the Framers recognized that majorities could override private property rights, and the Fifth Amendment was intended to preserve liberty and prevent the tragedy of the commons. Id. at 8–9.
Property Law Professors (“Professors”), in support of Hassid, contend that the Growers have retained their right to exclude. See Brief of Amici Curiae Professors, in Support of Respondents at 21. Professors argue that the Growers still own the farm, determine how the land is used, decide which parties can enter, with the only restriction coming from the access rule. Id. Professors also express concerns that many government programs might become compensable takings if this case is decided in the Growers’ favor. Id. at 23.
Meanwhile, Legal Historians, in support of Hassid, contend that American law has never recognized an absolute right to exclude. See Brief of Amici Curiae Legal Historians, in Support of Respondents at 5–6. Instead, Legal Historians emphasize that “rights of commons” have always been honored in the English and American property systems, such as the right to graze animals on village land, right to cross over another’s land, and right to collect wood. Id. at 6–7. Further, Legal Historians argue that Blackstone did not believe the right to exclude was absolute and respected the English tradition which allowed people to cross over private lands, such as using a path leading from a village into the field. Id. at 6–7. Legal Historians ultimately contend that American common law has recognized a right to provide “limited access to private property to protect the public interest.” Id. at 22.
- Hannah Brem, Supreme Court Takes Up California Farmworkers Union Case, Jurist (Nov. 16, 2020).
- Amy Howe, Justices Will Review Property Rights Case, SCOTUSblog (Nov. 13, 2020).
- Keahn N. Morris, John S. Bolesta, & James R. Hays, SCOTUS to Consider Whether California Unconstitutionally “Takes” Private Property When It Compels Employers to Grant Union Access to Private Property, The National Law Review (Nov. 16, 2020).