Amicus Curiae Brief — Cedar Point Nursery, et al., Petitioners v. Victoria Hassid, et al.

Supreme Court briefSep 2, 2020

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No. 20-107

In the

Supreme Court of the United States

CEDAR POINT NURSERY and FOWLER PACKING COMPANY, INC.,

Petitioners,

VICTORIA HASSID, in her official capacity as Chair of

the Agricultural Labor Relations Board; ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

BRIEF OF THE INSTITUTE FOR JUSTICE AS

AMICUS CURIAE

IN SUPPORT OF PETITIONERS

JEFFREY REDFERN

Counsel of Record

DANA BERLINER

ROBERT MCNAMARA

INSTITUTE FOR JUSTICE

901 North Glebe Road

Suite 900

Arlington, VA 22203

(703) 682-9320

jredfern@ij.org

Counsel for Amicus Curiae

TABLE OF CONTENTS

Table of Authorities................................................... iii

Interest of the Amicus Curiae .....................................1

Introduction .................................................................2

Argument .....................................................................3

The Ninth Circuit’s decision fails to

recognize that temporary physical invasions

are subject to a different and far more

stringent level of review than regulatory

actions that merely restrict an owner’s use of

property. ......................................................................3

A. Regulatory takings doctrine presents a

higher bar for property owners than

physical invasions. .................................................5

B. Temporary physical invasions are

presumptively takings. ..........................................7

II.

This court should reaffirm the

categorical difference between physical

invasions and regulations of property use. ..............10

Conclusion .................................................................11

iii

TABLE OF AUTHORITIES

Cases

Arkansas Game & Fish Comm'n v. United States,

568 U.S. 23 (2012)................................................4, 7

California Dental Ass'n v. F.T.C.,

526 U.S. 756 (1999) ..................................................7

Caquelin v. United States,

959 F.3d 1360 (Fed. Cir. 2020) ................................9

Caquelin v. United States,

140 Fed.Cl. 564 (Fed. Cl. 2018) ...............................9

Cedar Point Nursery v. Shiroma,

923 F.3d 524 (9th Cir. 2019)....................................3

Cienega Gardens v. United States,

331 F.3d 1319 (Fed. Cir. 2003) ........................ 10, 11

Colony Cove Properties, LLC v. City of Carson,

888 F.3d 445 (9th Cir. 2018)....................................6

First English Evangelical Lutheran Church of

Glendale v. Los Angeles Cty., Cal.,

482 U.S. 304 (1987) ..................................................8

Franklin Mem’l Hosp. v. Harvey,

575 F.3d 121 (1st Cir. 2009) ..................................10

Hendler v. United States,

952 F.2d 1364 (Fed. Cir. 1991) ............................8, 9

Hilton Washington Corp. v. D.C.,

593 F. Supp. 1288 (D.D.C. 1984), aff’d, 777 F.2d 47

(D.C. Cir. 1985) ....................................................7, 9

Hilton Washington Corp. v. District of Columbia,

777 F.2d 47 (D.C. Cir. 1985) ..................................10

Horne v. Dep't of Agric.,

576 U.S. 350 (2015) ..................................................5

Jones v. Phila. Police Dep’t,

57 F. App'x 939 (3d Cir. 2003) .................................8

Kaiser Aetna v. United States,

444 U.S. 164 (1979) ..................................................8

Keystone Bituminous Coal Ass'n v. DeBenedictis,

480 U.S. 470 (1987) ..................................................5

Knick v. Twp. of Scott, Pennsylvania,

139 S. Ct. 2162 (2019)..............................................6

Lingle v. Chevron U.S.A. Inc.,

544 U.S. 528 (2005) ..................................................6

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) ..............................................3, 7

Lucas v. S.C. Coastal Council,

505 U.S. 1003 (1992) ................................................6

Murr v. Wisconsin,

137 S. Ct. 1933 (2017)..............................................7

Penn Cent. Transp. Co. v. City of New York,

438 U.S. 104 (1978) ..................................................5

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922) ..................................................6

Piedmont Triad Reg’l Water Auth. v. Unger,

572 S.E.2d 832 (N.C. App. 2002) .........................6, 7

Portsmouth Harbor Land & Hotel Co. v. United

States,

260 U.S. 327 (1922) ..................................................9

Primetime Hosp., Inc. v. City of Albuquerque,

206 P.3d 112 (N.M. 2009) ........................................9

Prop. Reserve, Inc. v. Superior Court,

375 P.3d 887 (Cal. 2016) ..........................................8

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l

Planning Agency,

535 U.S. 302 (2002) .......................................... 4, 5, 7

William C. Haas & Co. v. City & County of San

Francisco,

605 F.2d 1117 (9th Cir.1979)...................................6

Williamson Cty. Reg’l Planning Comm’n v. Hamilton

Bank of Johnson City,

473 U.S. 172 n.17 (1985)..........................................6

YMCA v. United States,

395 U.S. 85 (1969) ....................................................8

Other Authorities

Frank I. Michelman, Property, Utility, and Fairness:

Comments on the Ethical Foundations of "Just

Compensation" Law,

80 Harv. L. Rev. 1165 (1967) ...................................9

BRIEF OF THE INSTITUTE FOR JUSTICE AS

AMICUS CURIAE

IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICUS CURIAE

Founded in 1991, the Institute for Justice (IJ) is

a nonprofit, public-interest legal center dedicated to

defending the essential foundations of a free society:

private property rights, economic and educational

liberty, and the free exchange of ideas. As part of

that mission, IJ has litigated cases challenging the

use of eminent domain to seize an individual’s private property and give it to other private parties.

Among the cases that IJ has litigated are Kelo v. City

of New London, 545 U.S. 469 (2005), in which this

Court held that the U.S. Constitution allows government to take private property and give it to others for purposes of “economic development,” and City

of Norwood v. Horney, 853 N.E.2d 1115 (Ohio 2006),

in which the Ohio Supreme Court expressly rejected

Kelo and held that the Ohio Constitution provides

greater protection for private property than does the

U.S. Constitution. IJ continues to litigate important

statutory and constitutional questions in eminent

domain cases around the country, both as amicus

and as counsel for property owners.

IJ agrees that certiorari is warranted for the reasons proffered in the Petition. IJ submits this brief to

offer an additional reason to grant the Petition: The

decision below neglects the crucial doctrinal difference between government action that causes a physical invasion of private property and government action that merely restricts an owner’s use of proper-

ty. As this brief explains, the latter is sometimes a

taking; the former presumptively a taking.1

INTRODUCTION

Farmers in California are required by state law

to allow labor organizers onto their property up to

three times per day, up to 120 days per year. A Ninth

Circuit panel below recognized that this law had created an uncompensated easement of indefinite duration. Yet, because the easement did not allow for 24hour access, 365 days per year, the court held that

the easement did not effect a per se taking.

Petitioner persuasively demonstrates that an

easement, even one that is limited to certain times of

the day or week, is a “permanent physical occupation” within the meaning of this Court’s precedents

and that, accordingly, the California law at issue is a

per se taking. The Institute for Justice submits this

brief, however, to highlight another way that the

court below erred. The panel held that if petitioner

was unable to establish a per se taking, then the only

available theory was a regulatory taking, which petitioner intentionally did not advance. Yet this Court

has consistently recognized that temporary physical

invasions are a distinct category of taking, different

from both permanent physical occupations and regulatory takings. And unlike regulatory takings, which

are extremely difficult to prove, temporary physical

occupations are usually takings. Only the briefest

1 In accordance with Rule 37.6, amicus affirms that no counsel

for a party authored this amicus brief in whole or in part and

that no person other than amicus or its counsel have made any

monetary contributions intended to fund the preparation or

submission of this brief. Both parties have consented to the filing of this brief.

physical invasions can escape the Fifth Amendment’s

just compensation requirement.

Unfortunately, the Ninth Circuit is not alone in

conflating temporary physical invasions with regulatory takings: The First, D.C, and Federal Circuits

have also misapplied this Court’s precedents in ways

that make it much more difficult for owners to receive compensation when the government physically

invades their property. This Court should grant review to clarify that physical invasions, even if they

do not qualify for per se treatment, are presumptively takings.

ARGUMENT

The Ninth Circuit’s decision fails to recognize

that temporary physical invasions are subject

to a different and far more stringent level of

review than regulatory actions that merely

restrict an owner’s use of property.

The court below began its takings analysis by

stating that there are “three categories” of government action in this Court’s takings jurisprudence.

Cedar Point Nursery v. Shiroma, 923 F.3d 524, 530–

31 (9th Cir. 2019). According to the court, those three

categories are (1) “permanent physical invasions,” (2)

“regulations that completely deprive an owner of all

economically beneficial use of her property,” and (3)

“the remainder of regulatory actions, which are governed by the standards set forth in Penn Central[.]”

Ibid. The first two categories, the court noted, are per

se takings, whereas the third is subject to a balancing test. After the court concluded that the California

law at issue did not effect a per se taking under

Loretto—which, as petitioner correctly explains, is

incorrect—the court stated that the only other kind

of taking was regulatory. Yet, the court noted, petitioner had never advanced such a theory. Instead,

petitioner had consistently argued “that the access

regulation involved a physical invasion, as opposed

to a regulatory taking.” Id. at 534.

The problem with the Ninth Circuit’s analysis is

that, by holding that a taking must be either a permanent physical occupation or a regulatory taking,

the court failed to recognize that temporary physical

invasions can also lead to takings and, crucially, that

they are not analyzed under the same standards as

regulatory takings. This Court has held that “[w]hen

the government physically takes possession of an interest in property for some public purpose, it has a

categorical duty to compensate the former owner

* * * even though that use is temporary.” TahoeSierra Pres. Council, Inc. v. Tahoe Reg'l Planning

Agency, 535 U.S. 302, 322 (2002) (emphasis added).

To be sure, the fact that physical invasions are

distinct from regulations does not mean that every

temporary physical invasion is a taking. This “Court

[has] * * * said that “temporary limitations are subject to a more complex balancing process to determine whether they are a taking.’” Arkansas Game &

Fish Comm'n v. United States, 568 U.S. 23, 36

(2012). Crucially, however, the “balancing process”

for temporary occupations is not the same as the deferential review that courts apply in regulatory takings cases. Quite the contrary.

This Court has consistently recognized that

physical invasions, even if temporary, are subject to

a different and more stringent analysis than mere

regulations of an owner’s use of property. And the

basis for that distinction comes from “[t]he text of the

Fifth Amendment itself.” Tahoe-Sierra, 535 U.S. at

321–22; Horne v. Dep't of Agric., 576 U.S. 350, 361

(2015) (recognizing the “longstanding distinction” between physical invasions and regulations of property). Indeed, the distinction between physical invasions and regulations is so sharp that this Court has

said it is “inappropriate to treat cases involving

physical takings as controlling precedents for the

evaluation of a claim that there has been a regulatory taking.” Tahoe-Sierra, 535 U.S. at 323. And the

reverse is obviously true as well.2

A. Regulatory takings doctrine presents a

higher bar for property owners than

physical invasions.

Prevailing on a regulatory takings claim is difficult. Although courts look to a number of factors, the

most important question, by far, in regulatory takings cases is the diminution of value caused by the

regulation at issue. See Keystone Bituminous Coal

Ass’n v. DeBenedictis, 480 U.S. 470, 497 (1987) (“our

test for regulatory taking requires us to compare the

value that has been taken from the property with the

value that remains in the property”). Obviously, as

2 Part of the confusion appears to stem from the fact that Penn

Central is sometimes treated as synonymous with regulatory

takings. Yet Penn Central actually distinguishes between physical invasions and regulations. In addressing the first Penn

Central factor, the “character of the government action,” this

Court explained that “[a] ‘taking’ may more readily be found

when the interference with property can be characterized as a

physical invasion by government.” Penn Cent. Transp. Co. v.

City of New York, 438 U.S. 104, 124 (1978). Subsequent physical invasion cases have typically not treated Penn Central as

setting out a controlling formula, except inasmuch as it indicates that courts should look to all of the facts and circumstances in takings cases. See Arkansas Game and Fish, 568 U.S. at

38–40.

this Court has held, a 100% reduction in value always constitutes a taking. Lucas v. S.C. Coastal

Council, 505 U.S. 1003, 1029 (1992). That follows

logically from the long recognized principle that a

regulation effects a taking when it goes “too far.”

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415

(1922). If a regulation destroys all of a property’s

value, it could not go any further. But short of a

complete wipeout, courts have tolerated very significant diminutions of value without finding that takings have occurred. See, e.g., Colony Cove Properties,

LLC v. City of Carson, 888 F.3d 445, 451 (9th Cir.

2018) (holding that 24.8% reduction in value was “far

too small to establish a regulatory taking”). Indeed,

regulations that destroy even 95% of a property’s

value have been blessed by courts (though not this

Court). See, e.g., William C. Haas & Co. v. City &

Cty. of San Francisco, 605 F.2d 1117, 1120 (9th Cir.

1979) (value reduced from $2 million to $100,000).

No precise lines have emerged in regulatory takings cases, but this Court has explained that a regulation only effects a taking when it is truly “onerous.”

Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537

(2005). This Court has also noted that “[t]he attempt

to determine when regulation goes so far that it becomes, literally or figuratively, a ‘taking’ has been

called the ‘lawyer's equivalent of the physicist’s hunt

for the quark.’” Williamson Cty. Reg’l Planning

Comm’n v. Hamilton Bank of Johnson City, 473 U.S.

172, 200 n.17 (1985) (quoting C. Haar, Land-Use

Planning 766 (3d ed. 1976)), overruled by Knick v.

Township of Scott, Penn., 139 S. Ct. 2162, 2170

(2019). Accordingly, it is widely understood that

“challenges to regulatory takings are difficult for

property owners to mount.” Piedmont Triad Reg’l

Water Auth. v. Unger, 572 S.E.2d 832, 835 (N.C. App.

2002).

B. Temporary physical invasions are presumptively takings.

By contrast, when the case involves a physical

invasion, the analysis is far simpler, and the property owner is far more likely to prevail. Indeed, this

Court has even stated in dicta that temporary physical invasions always require compensation. TahoeSierra, 535 U.S. at 322 (“[w]hen the government

physically takes possession of an interest in property

for some public purpose, it has a categorical duty to

compensate the former owner * * * even though that

use is temporary.”) (emphasis added). This Court has

since clarified that temporary physical invasions are

not quite per se takings, Arkansas Game & Fish, 568

U.S. at 36, but at the very least it is fair to say that

physical invasions—even temporary ones—are “presumptive takings.” See Hilton Washington Corp. v.

D.C., 593 F. Supp. 1288, 1291 (D.D.C. 1984), aff’d,

777 F.2d 47 (D.C. Cir. 1985).3

Crucially, diminution of value is irrelevant to the

question of whether there is a taking in a physical

invasion case (though it is of course relevant to damages). See Murr v. Wisconsin, 137 S. Ct. 1933, 1944,

(2017) (noting “the contrast between regulatory tak3 Analogizing to antitrust jurisprudence, as this Court has done

before, see Loretto v. Teleprompter Manhattan CATV Corp., 458

U.S. 419, 436 n. 12 (1982) (“In the antitrust area, similarly, this

Court has not declined to apply a per se rule simply because a

court must, at the boundary of the rule, apply the rule of reason

and engage in a more complex balancing analysis.”), one might

say that temporary physical invasions are subject to the “quick

look” review applied to actions that are usually unlawful. California Dental Ass'n v. F.T.C., 526 U.S. 756, 763 (1999).

ings, where the goal is usually to determine how the

challenged regulation affects the property's value to

the owner, and physical takings, where the impact of

physical appropriation or occupation of the property

will be evident.”); Kaiser Aetna v. United States, 444

U.S. 164, 179–80 (1979) (“And even if the Government physically invades only an easement in property, it must nonetheless pay just compensation.”);

First English Evangelical Lutheran Church of Glendale v. Los Angeles Cty., Cal., 482 U.S. 304, 329–30

(1987) (Stevens, J., dissenting) (“This diminution of

value inquiry is unique to regulatory takings.”). Rather, in physical invasion cases, the most important

question is the duration of the invasion. See Arkansas Game and Fish, 568 U.S. at 38–39.

Typically, courts will always find that there has

been a taking in physical invasion cases unless the

invasion was a brief, one-time incursion. For instance, in YMCA v. United States, 395 U.S. 85

(1969), this Court held that a “temporary, unplanned

occupation” of property during “the course of battle”

did not constitute a taking. Id. at 93. Similarly the

California Supreme Court has held that there is no

taking when government agents enter private property for the purpose of one-time groundwater testing.

See Prop. Reserve, Inc. v. Superior Court, 375 P.3d

887, 923 (Cal. 2016). (Though, the installation of

groundwater monitoring equipment on private property does effect a taking. See Hendler v. United

States, 952 F.2d 1364, 1371 (Fed. Cir. 1991).) And

the Third Circuit found that there was no taking

when police officers physically occupied a property

for just two hours while conducting a lawful search.

Jones v. Philadelphia Police Dep’t, 57 F. App’x 939,

942 (3d Cir. 2003). These types of cases were aptly

explained by the Federal Circuit in one of its leading

cases on physical invasions: Cases in which physical

invasions do not lead to takings are those in which

“government’s activity was so short lived as to be

more like the tort of trespass than a taking of property.” Hendler, 952 F.2d at 1371.

Once an invasion is extended beyond such brief

incursions or trespasses, however, takings are usually found. See Portsmouth Harbor Land & Hotel Co. v.

United States, 260 U.S. 327, 329–30 (1922) (“[W]hile

a single act may not be enough [to establish a taking], a continuance of them in sufficient number and

for a sufficient time may prove it. Every successive

trespass adds to the force of the evidence.”). In

Caquelin v. United States, 959 F.3d 1360 (Fed. Cir.

2020), a recent case applying Arkansas Game and

Fish, the Federal Circuit held that a property owner

was entitled to $900.00 as compensation for the government’s extending a private easement over the

owner’s property for 180 days. Such an invasion, the

trial court had noted, was not “the mere parked

truck of the lunchtime visitor.” Caquelin v. United

States, 140 Fed.Cl. 564, 579 (Fed. Cl. 2018) (citing

Hendler, 952 F.2d at 1376), aff’d, 959 F.3d 1360 (Fed.

Cir. 2020); see also Primetime Hosp., Inc. v. City of

Albuquerque, 206 P.3d 112, 123 (N.M. 2009) (awarding damages for 142 days of temporary physical invasion). So unlike an alleged regulatory taking,

where the deck is stacked against the property owner, a physical invasion, even a temporary one, “may

be characterized as a presumptive taking.” Hilton

Washington Corp. v. D.C., 593 F. Supp. 1288, 1291

(D.D.C. 1984), aff’d, 777 F.2d 47 (D.C. Cir. 1985); see

also Frank I. Michelman, Property, Utility, and

Fairness: Comments on the Ethical Foundations of

“Just Compensation” Law, 80 Harv. L. Rev. 1165,

1226 (1967) (noting that physical invasions have a

“doctrinal potency” in takings analysis).

II. This court should reaffirm the categorical

difference between physical invasions and

regulations of property use.

By conflating temporary physical invasions with

regulatory takings, the decision below threatens to

reverse the normal presumption that physical invasions are takings unless they are of an especially

short duration. Under the Ninth Circuit’s approach,

owners whose properties are subject to actual, physical invasions will increasingly find themselves without recourse unless they can prove serious financial

harm. This danger is not theoretical. For instance:



In Franklin Mem’l Hosp. v. Harvey, 575 F.3d

121 (1st Cir. 2009), the First Circuit denied

compensation to an owner whose property

was subject to “periodic and intermittent”

physical invasions, id. at 126 n.4, in part because the invasion at issue did not pose a

“threat to [the owner’s] economic viability.”

Id. at 127. Ye the court acknowledged that

the property owner faced significant economic harm. Ibid.



Similarly, in Hilton Washington Corp. v. District of Columbia, 777 F.2d 47 (D.C. Cir.

1985), the D.C. Circuit also denied compensation in a temporary physical invasion case

because the property owner did not demonstrate that the invasion caused a “significant

economic impact.” Id. at 50.



And in Cienega Gardens v. United States, 331

F.3d 1319 (Fed. Cir. 2003), the Federal Circuit held that a property owner subject to a

physical invasion was required to show “serious financial loss” from the regulation at issue in order to prove a taking. Id. at 1338,

1340. Fortunately, the court in that case concluded that the property’s 96% loss in value

was sufficient to establish a taking, but it left

open the question whether 35% would be sufficient. Id. at 1343 n.40.

Notwithstanding the clarity of this Court’s precedents, the federal courts are confused about how to

analyze temporary physical invasions. As a consequence, property owners are being denied the compensation due to them under the Fifth Amendment.

In addition to the reasons stated in the Petition, this

Court should grant review to clarify that the most

important question in a takings case is not whether

the challenged government action is a per se taking

or subject to a balancing test. The crucial question is

whether the government action constitutes a physical invasion. If it does, then it is presumptively a taking, regardless of whether it can be characterized as

a permanent, per se taking.

CONCLUSION

The Petition should be granted.

Respectfully submitted,

SEPTEMBER 2, 2020.