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

No. 20-107

In The

Supreme Court of the United States

____________________

CEDAR POINT NURSERY

and FOWLER PACKING COMPANY, INC.,

Petitioners,

v.

VICTORIA HASSID, in her official capacity as Chair

of the Agricultural Labor Relations Board, et al.,

Respondents.

____________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

____________________

BRIEF AMICUS CURIAE OF

AMERICAN FARM BUREAU FEDERATION

IN SUPPORT OF PETITIONERS

____________________

ELLEN STEEN

TRAVIS CUSHMAN

AMERICAN FARM BUREAU

FEDERATION

600 Maryland Avenue, S.W.

Suite 1000W

Washington, D.C. 20024

(202) 406-3600

PAUL J. BEARD II*

*Counsel of Record

FISHERBROYLES LLP

4470 W. Sunset Blvd.,

Suite 93165

Los Angeles, CA 90027

(818) 216-3988

paul.beard@fisherbroyles.com

Counsel for Amicus Curiae

i

Question Presented

California law forces agricultural businesses to

allow labor organizers onto their property three times

a day for 120 days each year. The regulation provides

no mechanism for compensation. A divided panel

below held that, although the regulation takes an

uncompensated easement, it does not effect a per se

physical taking of private property because it does not

allow “24 hours a day, 365 days a year” occupation. As

an eight-judge dissent from denial of rehearing en

banc noted, the panel “decision not only contradicts

Supreme Court precedent but also causes a conflict

split.”

The question presented is whether the

uncompensated appropriation of an easement that is

limited in time effects a per se physical taking under

the Fifth Amendment.

ii

Table of Contents

Identity and Interest of Amicus Curiae .................... 1

Summary of the Argument ........................................ 2

Argument .................................................................... 4

A. The Panel Decision Conflicts with

This Court’s Precedents Establishing

That Permanent Physical Occupations,

Even When Periodic or Intermittent,

“Chop” Through the “Bundle of Rights”

and Effect Per Se Takings .............................. 4

B. The Court Should Clarify That an

Appropriated Easement Effects a

Per Se Taking, Regardless of the

Frequency or Intermittency of the

Easement’s Use ......................................... …10

Conclusion ................................................................. 16

iii

Table of Authorities

Cases

Andrus v. Allard,

444 U.S. 51 (1979) ............................................... 9

Bounds v. Superior Court,

229 Cal. App. 4th 468 (2014) ............................... 5

Brown v. Legal Foundation of Washington,

538 U.S. 216 (2003) ............................................. 3

City of Malibu . Calif. Coastal Comm’n,

128 Cal. App. 4th 897 (2005) ............................. 12

Dolan v. City of Tigard,

512 U.S. 374 (1994) ........................................9-10

First English Envangelical Lutheran

Church v. County of Los Angeles,

482 U.S. 304 (1987) ........................................... 14

Hendler v. United States,

952 F.2d 1364 (Fed. Cir. 1991) .................... 11, 14

Kaiser Aetna v. United States,

444 U.S. 164 (1979) ......................................... 8-9

Kazi v. State Farm Fire & Casualty Co.,

24 Cal. 4th 871 (2001) ....................................... 11

Kelo v. City of New London,

545 U.S. 469 (2005) ............................................. 3

iv

Keystone Bituminous Coal Ass’n v.

DeBenedictis,

480 U.S. 470 (1987) ........................................... 10

Lingle v. Chevron USA, Inc.,

544 U.S. 528 (2005) ............................................. 3

Loretto v. Teleprompter Manhattan CATV

Corp.,

458 U.S. 419 (1982) ............................ 3, 5-7, 9-10

Lucas v. S.C. Coastal Council,

505 U.S. 1003 (1992) ....................................... 5, 8

Main Street Plaza v. Cartwright & Main,

LLC,

194 Cal. App. 4th 1044 (2011) ........................... 11

Mesnick v. Caton,

183 Cal. App. 3d 1248 ....................................... 12

Murr v. Wisconsin,

137 S. Ct. 1933 (2017) ....................................... 10

Nollan v. California Coastal Commission,

483 U.S. 825 (1987) ........................ 6-8, 11, 13-15

PruneYard Shopping Ctr. v. Robins,

447 U.S. 74 (1980) ............................................. 15

Redevelopment Agency v. Tobriner,

215 Cal. App. 3d 1087 (1989) ............................ 12

Redevelopment Agency v. Tobriner,

153 Cal. App. 3d 367 (1984) .............................. 13

v

Ridge Line, Inc. v. United States,

346 F.3d 1346 (Fed. Cir. 2003) .....................13-14

Surfrider Foundation v. Martins Beach 1,

LLC,

14 Cal. App. 5th 238 (2017)............................... 12

Tahoe-Sierra Pres. Council v. Tahoe Reg’l

Planning Agency,

535 U.S. 302 (2002) ......................................4-5, 9

Union Pac. R.R. Co. v. Santa Fe Pac.

Pipelines, Inc.,

231 Cal. App. 4th 134 (2014) ............................. 12

United States v. Dickinson,

331 U.S. 745 (1947) ........................................... 13

Statutes

Cal. Civ. Code § 806 ................................................ 12

Regulations

Cal. Code Regs. tit. 8, § 20900 ............................ 2, 14

Other Authorities

4 Powell on Real Property (2020) ........................... 12

California Coastal Commission,

Public Access: Action Plan (June 1999) ........... 12

Di Robilant, Anna, Property: A Bundle of

Sticks or a Tree?,

66 Vand. L. Rev. 869 (2013) ................................ 4

vi

Mossoff, Adam, What Is Property? Putting

the Pieces Back Together,

45 Ariz. L. Rev. 371 (2003) .................................. 5

Pipes, Richard, PROPERTY AND FREEDOM

(1999) ............................................................... 4-5

Sisk, Gregory, Returning to the PruneYard:

The Unconstitutionality of StateSanctioned Trespass in the Name of

Speech,

32 Harv. J.L. & Pub. Pol’y 389 (2009) .............. 15

1

IDENTITY AND INTEREST OF AMICUS

CURIAE

Amicus

curiae

American

Farm

Bureau

1

Federation (AFBF) is a voluntary general farm

organization formed in 1919 to protect, promote, and

represent the business, economic, social, and

educational interests of American farmers and

ranchers. Through its state and county Farm Bureau

organizations, AFBF represents about six million

member families in all 50 States and Puerto Rico.

The most recent data from the U.S. Department

of Agriculture’s Economic Research Service

(November 2018), which uses U.S. Department of

Commerce and Bureau of Economic Analysis statistics

to evaluate total full and part-time employment on

farms, estimates there are approximately 1.35 million

farmworkers in the United States. AFBF’s members

employ many of these farmworkers. Jobs are often

seasonal and transitory. Often, workers do not reside

on members’ farms or ranches, and either way can

generally be accessible to union organizers before and

after work, and on nonwork days.

Farm Bureau’s members have a strong interest in

protecting their right to exclude trespassers from

1 All counsel of record for the parties in this case received

timely notice of, and provided written consent to, the filing of this

brief. No party or counsel for any party authored this brief in

whole or in part, and no party or counsel for any party made a

monetary contribution towards the preparation or submission.

No person other than amici, their members or counsel made a

monetary contribution towards the preparation or submission of

this brief.

2

their lands, and to thereby establish a safe and

undisturbed work environment for themselves and

their employees. The regulation challenged in this

case purports to impose an access easement on

agricultural businesses for the benefit of union

activists. Such regulations threaten AFBF members’

efforts to safeguard their workplaces against

unauthorized intrusions. For that reason, AFBF

strongly supports the petition.

SUMMARY OF THE ARGUMENT

A California regulation confers “the right of access

by union organizers to the premises of an agricultural

employer for the purpose of meeting and talking with

employees and soliciting their support.” Cal. Code

Regs. tit. 8, § 20900(e) (hereinafter, “Access

Regulation”). The Access Regulation has no end date,

and defines when and how an organizer may exercise

his right to enter and recruit on private property.

Union organizers may use an agricultural employer’s

property for union activities for up to four 30-day

periods in a calendar year, and for one hour before the

start of work, one hour after the completion of work,

and one hour during employees’ lunch break. Id. §

20900(e)(1). Two agricultural employers challenged

the Access Regulation as a per se taking of private

property without compensation, in violation of the

Takings Clause of the Fifth Amendment to the United

States Constitution.2 App. G13—G15.

The petitioners allege that the Access Regulation

unconstitutionally appropriates an easement without just

compensation. G-13; see also U.S. Const. amends. V (Takings

Clause), XIV (incorporating the Takings Clause against state

2

3

A panel of the Ninth Circuit concluded that the

petitioners did not state a per se taking claim. App A22. Among other things, the panel reasoned that “the

sole property right affected by the regulation is the

right to exclude”—purportedly leaving intact the

other “strand[s]’ from the ‘bundle’ of property rights,”

including the rights to possess, use, and dispose of the

burdened property. App. A-18 (quoting Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419

(1982)). The panel also found the limitation on the

frequency of use of the easement to preclude a per se

taking under Loretto. App. A14-17.

The panel decision creates a circuit split over

important federal questions concerning takings law.

and local governments). But the Access Regulation also likely

violates the Public Use Clause of the Takings Clause. Brown v.

Legal Foundation of Washington, 538 U.S. 216, 231-32 (2003)

(underscoring the Takings Clause’s two separate requirements

that a taking be for a public use and be justly compensated). If

the government “fails to meet the ‘public use’ requirement,” then

“that is the end of the inquiry,” and “[n]o amount of compensation

can authorize such action.” Lingle v. Chevron U.S.A. Inc., 544

U.S. 528 (2005). The Public Use Clause bars a taking of private

property for a private use or purpose. As the United States

Supreme Court has explained: “[I]t has long been accepted that

the sovereign may not take the property of A for the sole purpose

of transferring it to B.” Kelo v. City of New London, 545 U.S. 469,

477 (2005). If a taking is designed simply “to benefit a particular

class of identifiable individuals,” then the taking is not for a

“public use” consistent with the Public Use Clause and is

therefore unconstitutional. Id. at 478. Here, the Access

Regulation is designed to benefit a particular class of identifiable

individuals—union organizers—to promote their private purpose

of recruiting workers. There is no discernible public use or public

purpose for the easement. Thus, the regulation likely violates,

not just the Just Compensation Clause, but the Public Use

Clause as well.

4

The decision ignores and is in direct conflict with key

takings precedents of this Court, which acknowledge

robust protections of private property rights against

government appropriations. If the panel’s decision is

allowed to stand, agricultural employers—and

property owners generally—can expect to see a

dramatic increase in government-imposed easements

authorizing third parties to engage in substantial

“time-limited” occupation and use of their properties.

The Court’s review is needed to resolve the

conflicts and confusions created by the Ninth Circuit’s

decision.

ARGUMENT

A. The Panel Decision Conflicts with This

Court’s

Precedents

Establishing

That

Permanent Physical Occupations, Even

When Periodic or Intermittent, “Chop”

Through the “Bundle of Rights” and Effect

Per Se Takings

In its takings cases, the Court has sometimes

invoked the “bundle of rights” metaphor to describe

property ownership.3 See, e.g., Tahoe-Sierra Pres.

3 The “bundle of rights” metaphor “suggests that the bundle is

malleable (i.e., that private actors, courts, and lawmakers may

add or remove sticks, and that the bundle structures relations

among persons, only secondarily and incidentally involving a

thing).” Anna di Robilant, Property: A Bundle of Sticks or a

Tree?, 66 Vand. L. Rev. 869, 871 (2013). Scholarly criticism of the

“bundle of rights” approach to property abound. “Under the

influence of Marx, some modern theorists prefer to define

‘property’ . . . not as the right over ‘things’ but as ‘relations among

persons in respect to things.’ . . . But such a definition is hardly

satisfactory . . . .” Richard Pipes, PROPERTY AND FREEDOM xv-xvi

5

Council v. Tahoe Reg’l Planning Agency, 535 U.S. 302,

327 (2002). In that description, a landowner has a

bundle of “strands” or “sticks,” each of which

represents an attribute of ownership: the right to

possess, the right to use, the right to dispose, and the

right to exclude. Id.; see also Lucas v. S.C. Coastal

Council, 505 U.S. 1003, 1027 (1992) (“[O]ur ‘takings’

jurisprudence . . . has traditionally been guided by the

understandings of our citizens regarding the content

of, and the State’s power over, the ‘bundle of rights’

that they acquire when they obtain title to property.”);

Bounds v. Superior Court, 229 Cal. App. 4th 468, 479

(2014) (describing the traditional “strands”).

In Loretto, the Court held that “a permanent

physical occupation of another’s property”—“perhaps

the most serious invasion of an owner’s property

interests”—“chops through the bundle, taking a slice

of every strand” and thereby gives rise to a per se

taking. Loretto, 458 U.S. at 435 (emphasis added). In

that case, state law provided that a landowner must

permit a cable television company to install its cable

facilities on the landlord’s property. The Court

concluded that the law eliminated all “strands” in the

landlord’s “bundle of rights”: “the owner has no right

to possess the occupied space himself,” “has no power

to exclude the occupier from possession and use of the

space,” and has no ability to “control the use of the

(1999) (internal citations omitted). The “bundle of rights”

metaphor can be seen as a means of unjustly facilitating

government appropriations of property without just

compensation. See, e.g., Adam Mossoff, What Is Property? Putting

the Pieces Back Together, 45 Ariz. L. Rev. 371, 393 (2003)

(arguing for an “integrated theory of property” that rejects the

fragmentation of property rights inherent in the “bundle of

rights” approach).

6

[occupied] property.” Id. at 435-36. The Court noted

that the appropriation is even more objectionable

when “a stranger directly invades and occupies the

owner’s property.” Id. at 436.

The cable facilities in Loretto physically occupied

space—continuously—on the landlord’s property.

Thus, it was easy to see how the facilities destroyed

the landlord’s right to possess, use, and dispose of the

occupied area. But what about intermittent or

periodic invasions or occupations? The Ninth Circuit

in this case found that such an invasion or occupation

at most affects only “one strand”—the right to

exclude—and therefore cannot be a per se taking. Ap.

A-18. But the panel’s holding conflicts with Nollan v.

California Coastal Commission, 483 U.S. 825 (1987),

which extended Loretto to intermittent, periodic, or

otherwise “time-limited” invasions or occupations.

In Nollan, the property owner challenged a stateimposed easement that required him to allow the

public to pass and repass across his yard, which

abutted the beach. Id. at 831-32. The easement

resulted in only periodic and fleeting invasions by

members of the public. Id. at 832 (“[N]o individual is

permitted to station himself permanently upon the

premises.”). Indeed, the easement would sometimes

go completely unused, with no occupation by anyone

or anything—even for long periods of time. Id. at 854

(Brennan, J., dissenting) (“”[T]he high-tide line shifts

throughout the year, moving up to and beyond the

seawall, so that public passage for a portion of the

year would either be impossible or would not occur on

appellant’s property.”) Nevertheless, the Court held

that the easement effected a permanent physical

7

occupation constituting a per se taking, because

“individuals are given a permanent and continuous

right to pass to and fro, so that the real property may

continuously be traversed, even though no particular

individual is permitted to station himself

permanently upon the premises.” Id. at 832

(emphasis). In other words, while the right held by

members of the public was permanent and

continuous, because the easement had no end-date,

the physical occupations that occurred on the

owner’s land were not; they were periodic or

intermittent, and even non-existent for periods of

time.

Much like the cable facilities in Loretto, the

easement in Nollan “chopped” through the owner’s

“bundle of rights.” Applying the analysis in Loretto, it

becomes evident that the Nollan owner had no right

to exclusively possess or use the space permanently

burdened by the easement and physically occupied by

members of the public as they walked through his

backyard. Nor did the owner have the right to exclude

occupiers from possession and use of the space they

traversed.

Consistent with Loretto and Nollan, that same

analysis should apply to the Access Regulation, which

permanently4 mandates that owners allow perfect

strangers—union activists—to periodically occupy

their properties (for up to three hours a day, 120 days

a year). When unionizers do so, the agricultural

landowner loses the right to possess and use the

occupied areas, as well as the right to freely dispose of

4 The regulation has no end date and is, in that sense, permanent.

The Ninth Circuit seemed to agree on this point. App. A-17.

8

and exclude the ambulant occupiers from such areas.

The easement represents a permanent physical

occupation of the kind invalidated as an unlawful per

se taking in Nollan. Nollan, 483 U.S. at 841-42.

Finally, it should be noted that it is not at all clear

that the easement created by the Access Regulation

must cut across all “strands” of the “bundle of rights”

in order to be deemed a per se taking. In fact, the

Court’s takings cases suggest that the elimination of

just one “strand”—e.g., the “fundamental” right to

exclude—is sufficient. Kaiser Aetna v. United States,

444 U.S. 164, 179–80 (1979), Again, in this sense, the

panel’s decision to the contrary raises another

potential conflict with the Court’s well-established

takings precedents.

In Lucas, the Court held that a law depriving an

owner of one “strand” in the “bundle of rights”—the

right to use—effected a per se taking. Lucas, 505 U.S.

at 1030. In Lucas, a property owner challenged a state

law barring all economically beneficial use of his land.

Id. at 1008-09. The law did not destroy the other

“strands” in the owner’s “bundle of rights.” He still

retained exclusive possession of the property, had the

right to exclude others from it, and could dispose of

the land. Nevertheless, the Court found a per se taking

based on the elimination of the right to use.

Similarly, in Kaiser Aetna, 444 U.S. 164, the

Court found that “the Government’s attempt to create

a public right of access to the improved pond” of a

private party eliminated one “strand”—the right to

exclude—in a way that effected a categorical taking.

Id. at 179-80. That the owner still had the right to

9

possess, use, and dispose of the property did not

preclude the finding of a taking. Id. at 167-69.5

Lastly, in Dolan v. City of Tigard, 512 U.S. 374

(1994), the Court considered whether appropriation of

easements for public storm-drainage improvements

and a pedestrian/bicycle pathway effected a per se

taking. Id. at 380. The Court answered in the

affirmative, because the appropriation meant “the

loss of [the owner’s] ability to exclude others”—“one of

the most essential sticks in the bundle of rights.” Id.

at 393 (quoting Kaiser Aetna, 444 U.S. at 176).

Despite these examples, a number of the Court’s

opinions contain language to the effect that

elimination of one “strand” is not a taking. That

language appears to be attributable to Andrus v.

Allard, 444 U.S. 51, 66-67 (1979), in which the Court

remarked in dicta that “the destruction of one strand

of the bundle is not a taking.” In Andrus, a law barring

the commercial sale of eagle feathers was challenged

as a taking. The Court rejected the claim, because the

law merely restricted one way in which personal

property could be disposed of, not because the law

eliminated just one “strand” in the “bundle of rights.”

Id.; Tahoe-Sierra Pres. Council, 535 U.S. at 327

(invoking Andrus for the proposition that “the

destruction of one strand of the bundle is not a

5 One could even argue that the easement imposed in Nollan

eliminated just one “strand”—namely, the right to exclude

members of the public from the owner’s backyard. The owner

arguably retained the right to possess, use, and dispose of his

land, including the area burdened by the access easement.

Nevertheless, as in Lucas, the Court found that the

appropriation of the easement was a per se taking consistent with

Loretto.

10

taking”); Keystone Bituminous Coal Ass’n v.

DeBenedictis, 480 U.S. 470, 480 (1987) (same);

Loretto, 458 U.S. at 435-46 (same); Murr v. Wisconsin,

137 S. Ct. 1933, 1952 (2017) (Roberts, C.J., dissenting)

(same); Dolan, 512 U.S. at 401 (Stevens, J.,

dissenting) (same).

The panel’s application of the “bundle of rights”

framework to the Access Regulation highlights some

basic confusions, as well as actual and potential

conflicts with the Court’s precedents. Those

confusions and conflicts merit review.

B. The Court Should Clarify That An

Appropriated Easement Effects a Per Se

Taking, Regardless of the Frequency or

Intermittency of the Easement’s Use

The panel found that the easement created by

the Access Regulation does not constitute a

“permanent . . . occupation.” App. A-16. The panel did

not dispute that the easement or regulation itself is

permanent, neither of which has an end-date. App. A17. Instead, the panel focused on the fact that the

unionizers’ use of the easement is not “continuous,”

but “unpredictabl[e]” and intermittent. App. A-17—A18.

The decision exploits significant unclarity in

the Court’s takings jurisprudence with respect to the

constitutional

distinction

(if

any)

between

“permanent” and “temporary” appropriations,

occupations, and invasions, particularly as those

concepts apply to easements. As Judge Ikuta keenly

observed in her dissent from the Ninth Circuit’s denial

11

of rehearing, “[t]he word ‘permanent’ has carried a

variety of different meanings in takings jurisdiction,

and its meaning has changed over time.” App. E-30.

The variability over the years in the meaning and

import of the “permanence” concept has sown much

confusion—a problem that would benefit from the

Court’s review in this case. See, e.g., Hendler v. United

States, 952 F.2d 1364, 1376-77 (Fed. Cir. 1991)

(describing the confusion surrounding references to

“temporary” versus “permanent” takings).

Setting aside the unresolved debate over

“permanent” versus “temporary” occupations or

invasions, easements are unique property interests

that are, by their very nature, limited in their use.

Even so, they are uncontestably compensable property

interests. If appropriated by government, the

easement—whatever the time-limitations on its use—

triggers compensation. Nollan recognized that salient

fact. By denying that a periodically or intermittently

used easement can be a per se taking, the panel

decision is at odds with Nollan.

Under California law, “[a]n easement is an

interest in the land of another, which entitles the

owner of the easement to a limited use or enjoyment

of the other’s land.” Main Street Plaza v. Cartwright

& Main, LLC, 194 Cal. App. 4th 1044, 1053 (2011)

(internal citation and quotation marks omitted). An

easement “represent[s] only a nonpossessory right to

use another’s property.” Kazi v. State Farm Fire &

Casualty Co., 24 Cal. 4th 871, 881 (2001). It is

characterized by “restricted, partial, or intermittent

use of another’s property,” and involves “primarily the

privilege of doing a certain act on, or to the detriment

12

of” said property. Mesnick v. Caton, 183 Cal. App. 3d

1248, 1261 (1986) (emphasis in original).6

An easement’s limited scope and effect are defined

by the terms of the instrument that created it. Cal.

Civ. Code § 806; see also Union Pacific Railroad Co. v.

Santa Fe Pacific Pipelines, Inc., 231 Cal. App. 4th 134,

164 (2014). Thus, easements can be of temporary or

permanent duration. Surfrider Foundation v. Martins

Beach 1, LLC, 14 Cal. App. 5th 238, 274 (2017)

(discussing “temporary easements”). And they can

vary in terms of the frequency with which the

easement holder may use the burdened property. See,

e.g., City of Malibu v. California Coastal Comm’n, 128

Cal. App. 4th 897, 907 n.2 (2005) (describing

California Coastal Commission-approved publicaccess easement, limited to “sunrise to sunset”).7

Those durational and “frequency of use”

limitations do not make an easement any less of a

“property interest” in the landowner’s property.

Redevelopment Agency v. Tobriner, 215 Cal. App. 3d

1087, 1091 (1989). Further, because easements are a

species of property right, and their appropriation by

The hallmarks of an easement, including the fact that it

consists of a limited use, are not unique to California law. See,

e.g., 4 Powell on Real Property § 34.02 (2020) (reporting that the

First Restatement of Property § 540 cites six factors defining an

“easement,” including that it is “an interest of a ‘limited use or

enjoyment” and is nonpossessory).

6

All Commission-imposed public-access easements burdening

private property in the coastal zone generally have “hours of

operation”—a clear limitation on the frequency of the public’s use

of the easements. See California Coastal Commission, Public

Access:

Action

Plan

(June

1999),

available

at

https://documents.coastal.ca.gov/assets/access/accesspl.pdf.

7

13

government is deemed an outright taking,

government routinely uses eminent domain

proceedings to condemn them. Redevelopment Agency

v. Tobriner, 153 Cal. App. 3d 367, 370-72 (1984)

(discussing condemnation of “parking easements”). It

is little wonder that the Court in Nollan held that the

appropriation of a public-access easement—even for

periodic or intermittent use during most (though not

all) of the year—constituted a per se taking. As one

federal Circuit Court of Appeals has held, “[i]t is well

established that the government may not take an

easement without just compensation.” Ridge Line,

Inc. v. United States, 346 F.3d 1346, 1352 (Fed. Cir.

2003); see also United States v. Dickinson, 331 U.S.

745, 748 (1947) (“Property is taken in the

constitutional sense when inroads are made upon an

owner’s use of it to an extent that, as between private

parties, a servitude has been acquired either by

agreement or in course of time.”).

The panel sought to distinguish the easement in

this case from Nollan. App. A-17. Quoting Nollan, 483

U.S. at 832, the panel reasoned that “the regulation

does not grant union organizers a ‘permanent and

continuous right to pass to and fro’ such that the

[owner’s] property ‘may continuously be traversed.’”

App. A-17. But the regulation does in fact grant

organizers the permanent and continuous statutory

right to access an owner’s property. That is, as long

as the Access Regulation is on the books, the right will

exist. In that sense, the right is “permanent.”

As alluded to above, what is noncontinuous or

“temporary” is the occupancy or invasion of the

property when unionizers exercise their statutory

14

right to access it. They may enter the owner’s property

for up to four 30-days periods in a calendar year, and

for one hour before the start of work, one hour after

the completion of work, and one hour during lunch.

Code Regs. tit. 8, § 20900(e)(1). During those times,

unionizers’ occupation may be “temporary.” And as in

Nollan, there are many days on which no one exercises

the statutory right at all, and the burdened property

remains unoccupied. But under the Court’s

precedents, the temporariness of an otherwise

significant occupation—of the kind at issue in Nollan

and with respect to the Access Regulation here—does

not make the government immune from a per se

taking. First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304, 318 (1987)

(“’Temporary’ takings . . . are not different in kind

from permanent takings, for which the Constitution

clearly requires compensation.”). Under Nollan, the

easement effects a per se taking.

As to whether and how the issue of permanency

affects a takings analysis of an appropriated

easement, the panel decision conflicts not only with

the Court’s decision in Nollan, but with the decisions

of Circuit Courts of Appeal. For example, in Ridge

Line, 346 F.3d 1346, a property owner challenged the

increased water runoff caused by the development of

a Postal Service facility as a taking of a flowage

easement by inverse condemnation. The Federal

Circuit held that the owner had a viable takings claim,

noting that an unauthorized “occupation” need not

be “continuous.” Id. at 1352 (emphasis added); see also

Hendler, 952 F.2d at 1377 (“[T]he concept of

permanent physical occupation does not require that

15

in every instance the occupation be exclusive, or

continuous and uninterrupted.”).

Finally, the source of the panel’s confusion

appears to be the lingering effects of PruneYard

Shopping Center v. Robins, 447 U.S. 74 (1980).

PruneYard involved the question whether a taking

resulted from state constitutional provisions

authorizing individuals to exercise their free-speech

and petition rights on privately owned shopping

centers to which the public is invited. Id. 76-77. The

Court answered in the negative. Seven years later, the

Court in Nollan underscored the extent to which

PruneYard was limited to the unique facts of that

case: The owner “had already opened his property to

the general public,” which is worlds apart from a state

law authorizing third parties to enter—and, in the

case of the Access Regulation, conduct business—on

private property that is closed to the public. Nollan,

483 U.S. at 832 n.1.

PruneYard has become somewhat anachronistic

and may be due for reconsideration in the context of

this petition. In the time since the case was decided in

1980, the Court “has significantly expanded its

interpretation of property rights under the Fifth

Amendment, broadening the circumstances under

which the public owes compensation for intrusions on

private property.” Gregory C. Sisk, Returning to the

PruneYard: The Unconstitutionality of StateSanctioned Trespass in the Name of Speech, 32 Harv.

J.L. & Pub. Pol’y 389, 408 (2009).

The Court should clarify the meaning and role of

the “permanency” concept in takings cases in order to

16

resolve a circuit split, and ensure continued adherence

to the Court’s long-standing takings precedents.

CONCLUSION

For these reasons, and those stated in the

petition, the petition should be granted.

DATED: September 2020

Respectfully submitted,

PAUL J. BEARD II

Counsel of Record

FisherBroyles LLP

4470 W. Sunset Blvd.

Suite 93165

Los Angeles, CA 90027

(818) 216-3988

paul.beard@fisherbroyles.com

Counsel for Amicus Curiae