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

Supreme Court briefJan 6, 2021

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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 WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICUS CURIAE

NEW ENGLAND LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

Counsel for Amicus Curiae

John Pagliaro

Counsel of Record

Martin J. Newhouse, President

New England Legal Foundation

150 Lincoln Street

Boston, Massachusetts 02111

Tel.: (617) 695-3660

johnpagliaro@nelfonline.org

Dated: January 6, 2021

BATEMAN & SLADE, INC.

STONEHAM, MASSACHUSETTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................ii

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF THE ARGUMENT............................ 2

ARGUMENT ............................................................... 3

In Neither Portsmouth Harbor Nor Causby

Did The Taking Depend On The Economic

Harm Caused By The Government; In

Both, The Servitude Was Treated As

Directly Physically Imposed And

As Per Se ..................................................... 3

II.

Kaiser Aetna Was Not Decided As A

Penn Central Regulatory Taking;

The Easement Was Treated As An

Imposed Physical Invasion ....................... 11

CONCLUSION.......................................................... 16

TABLE OF AUTHORITIES

Andrus v. Allard, 444 U.S. 51 (1979) .................13, 14

Cedar Point Nursery v. Shiroma,

923 F.3d 524 (2019) ........................................11

Cedar Point Nursery v. Shiroma,

956 F.3d 1162 (2020) ..............................4, 9, 10

First English Evangelical Lutheran Church of

Glendale v. Los Angeles County,

482 U.S. 304 (1987) ........................................10

Kaiser Aetna v. United States,

444 U.S. 164 (1979) .................................. 11-16

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992) ....................11, 12, 13, 15

Peabody v. United States, 231 U.S. 530 (1913) ......5, 6

Penn Central Transportation Co. v. New York City,

438 U.S. 104 (1978) ..................3, 11, 14, 15, 16

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922) ........................................15

Portsmouth Harbor Land and Hotel Co. v.

United States, 260 U.S. 327 (1922) ............ 3-10

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency, 535 U.S. 302

(2002) ........................................................ 10-11

United States v. Causby, 328 U.S. 256 (1946)...... 9-11

United States v. Miller,

317 U.S. 369 (1943) ..................................14, 15

United States ex rel. TVA v. Powelson,

319 U.S. 266 (1943) ..................................14, 15

iii

INTEREST OF AMICUS CURIAE1

The New England Legal Foundation (NELF) is a

nonprofit, nonpartisan, public-interest law firm

incorporated in Massachusetts in 1977 and

headquartered in Boston. Its membership consists

of corporations, law firms, individuals, and others

who believe in NELF’s mission of promoting

balanced economic growth in New England and the

nation, protecting the free-enterprise system, and

defending individual economic rights and the rights

of private property. In fulfillment of its mission,

NELF has filed numerous amicus briefs in this

Court in a great variety of cases.

NELF appears as an amicus in the present case

because a core part of its mission has long been the

defense of private property rights, and many of

NELF’s briefs in this Court have dealt with takings

issues. NELF’s interest in this case specifically lies

in the important issues of takings law raised by the

Petitioners in the Question Presented.

As the

Petition explained, the answer this Court gives to

that question will have ramifications in many areas

of governmental regulation. Pet. at 27-31. How the

Court decides this case will also delineate more

clearly the scope of the right to exclude, which is a

1 Pursuant to Supreme Court Rule 37.6, NELF states that no

party or counsel for a party authored this brief in whole or in

part and that no person or entity, other than NELF, made any

monetary contribution to its preparation or submission.

Pursuant to Supreme Court Rule 37.3(a), NELF has obtained

the consent of all parties. On December 2, 2019 Petitioners

filed a blanket consent to the filing of amicus briefs in support

of either or neither party, and by email dated December 21,

2020, the Deputy Solicitor General of California granted the

consent of the Respondents to the filing of this brief.

cardinal attribute of private ownership. Hopefully,

too, the Court’s interpretations of its own past

decisions will clarify the proper understanding of

those decisions, which are now frequently points of

marked contention between litigants, as the briefing

in this case illustrates.

For these reasons, NELF has filed this brief to

assist the Court by providing an explication of three

of its relevant past decisions.

SUMMARY OF THE ARGUMENT

As this case has illuminated, there exist

considerable differences in the views taken of this

Court’s past takings decisions. Any reliance on the

following three cases in order to establish that the

claims here must be analyzed as regulatory takings

would be mistaken. In none of them did the holding

turn on a multifactor analysis in which extent of

economic injury played the dominant role.

A close examination of Portsmouth Harbor Land

and Hotel Co. v. United States, 260 U.S. 327 (1922),

reveals that the Court focused exclusively on the

physical character of the government’s actions in

firing coastal artillery and on whether these actions

could be seen to imply an intention physically to

subordinate private property interests to the public

interest, i.e., to take an easement. The decision did

not consider or weigh the extent of any harms

suffered by the claimant.

Similarly, in United States v. Causby, 328 U.S.

256 (1946), in which the Court explicitly declared it

would follow the “philosophy of Portsmouth Harbor,”

the Court considered whether direct airspace

invasions made by military aircraft were an exercise

of such dominion and control over the land below

that an easement of flight had been imposed on

private property by the government.

Finally, in Kaiser Aetna v. United States, 444

U.S. 164 (1979), the Court rejected the argument

that background legal principles created a

navigational servitude that would allow the public

free access to private property. The Court ruled that

the government would have to pay for the public

easement it claimed because such access would be a

physical invasion and a direct appropriation of a

property interest, much like the taking of an entire

fee interest by eminent domain.

ARGUMENT

I. In Neither Portsmouth Harbor Nor Causby

Did The Taking Depend On The Economic

Harm Caused By The Government; In Both

The Servitude Was Treated As Directly

Physically Imposed And As Per Se.

In their Brief in Opposition (BIO), the

Respondents argued that Portsmouth Harbor Land

and Hotel Co. v. United States, 260 U.S. 327 (1922),

established that “only if the invasions substantially

impaired the plaintiffs’ use of their property” could a

taking be found. BIO at 15. They clearly intend to

steer the Court into viewing this case under the

Penn Central multifactor test applicable to a

regulatory taking. See id. at 12 (claims subject to

“multi-factor regulatory” analysis, but Petitioners

chose not to assert Penn Central claims). See Penn

Central Transportation Co. v. New York City, 438

U.S. 104 (1978). In support of their view, they quote

selectively from Portsmouth Harbor, a pre-Penn

Central case. Judge Paez, in his concurrence with

the denial of en banc review, seems to take

substantially the same position and quotes the same

passage from Portsmouth Harbor.

The Respondents’ supporting citation to

Portsmouth Harbor contains a parenthetical that

reads as follows: “if ‘the Government . . . fire[s]

projectiles directly across’ property, ‘with the result

of depriving the owner of its profitable use,’

compensation would be required.” BIO at 15 n.7

(quoting Portsmouth Harbor) (original alterations).

Judge Paez, for his part, described Portsmouth

Harbor’s inquiry as “limited” to finding a taking

“when the intrusion ‘result[ed] in depriving the

owner of its profitable use[.]’” Cedar Point Nursery v.

Shiroma, 956 F.3d 1162, 1163 (9th Cir. 2020)

(quoting Portsmouth Harbor) (failure to note

alteration of “of’ to “in” and emphasis original to

concurrence).

Both uses of the quotation are highly misleading,

however. The taking analysis found in Portsmouth

Harbor focused solely on whether an intention to

take by physical invasion could be attributed to the

government from the acts of its officers. Both the

majority opinion, written by Justice Holmes, and the

dissent of Justice Brandeis agreed that extent of

harm was irrelevant to the takings question in that

case.

The Portsmouth Harbor passage in question is

itself a quotation from a related case dealing with

the same long-running dispute. The quotation reads

in its entirety as follows:

‘If the Government had installed its

battery, not simply as a means of

defense in war, but with the purpose

and effect of subordinating the strip of

land between the battery and the sea to

the right and privilege of the

Government to fire projectiles directly

across it for the purpose of practice or

otherwise, whenever it saw fit, in time

of peace, with the result of depriving

the owner of its profitable use, the

imposition of such a servitude would

constitute an appropriation of property

for which compensation should be

made.’

Portsmouth Harbor, 260 U.S. at 329 (quoting

Peabody v. United States, 231 U.S. 530, 538 (1913)).

Conspicuous by its absence from the Brief in

Opposition and Judge Paez’s concurrence is any

reference to the installation of the guns having “the

purpose and effect of subordinating the strip of land

. . . to the right and privilege of the Government to

fire projectiles directly across it . . . whenever it saw

fit, in time of peace” (emphasis added). Contra

Judge Paez, so far from being “limited” to economic

harms, the taking inquiry of both Peabody and

Portsmouth Harbor dwelt entirely on the question of

the government’s intention to “subordinat[e]” private

property rights physically to the public interest by

installing and then firing the large coastal guns

“whenever it saw fit.”

In the related Peabody case, for example,

immediately after the passage later quoted in

Portsmouth Harbor, the Court wrote in 1913:

[T]he question remains whether it

satisfactorily appears that the servitude

has been imposed; that is, whether

enough is shown to establish an

intention on the part of the government

to impose it. The suit must rest upon

contract, as the government has not

consented to be sued for torts, even

though committed by its officers in the

discharge of their official duties . . . and

a contract to pay, in the present case,

cannot be implied unless there has been

an actual appropriation of property . . . .

That there is any intention to repeat it

[i.e., the firing of the guns] does not

appear, but rather is negatived. . . . We

deem the facts found to be too slender a

basis for a decision that the property of

the claimants has been actually

appropriated, and that the government

has thus impliedly agreed to pay for it.

231 U.S. at 538-540 (emphasis added). Note that

any taking was seen to turn on the government’s

intention to assert de facto superior rights over

private property by firing its coastal guns at will

invasively over the property. If such facts were

shown, the Court said, the government would have

made “an actual appropriation of property.”

For the same reasons, when the takings claim

came before the Court again in 1922 in Portsmouth

Harbor, the Court again focused on what intention

could be read into the government’s overt, physical

acts, and not on the extent of harm. As Justice

Holmes wrote in the sentence immediately preceding

his insertion of the Peabody quotation, “[t]here is no

doubt that a serious loss has been inflicted upon the

claimant, . . . and . . . it is decided that that and the

previously existing elements of actual harm do not

create a cause of action.” Portsmouth Harbor, 260

U.S. at 329 (emphasis added).

After reviewing the new facts that had

emerged since the Court’s last decision on the

dispute, Justice Holmes wrote that the Court now

viewed a taking as adequately pled:

[E]ven when the intent thus to make

use of the claimants’ property is not

admitted [by the United States], while a

single act may not be enough, a

continuance of them in sufficient

number and for a sufficient time may

prove it [i.e., intent]. . . . As we have

said the intent and the overt acts are

alleged as is also the conclusion that

the United States has taken the land.

That we take to be stated as a

conclusion of fact and not of law, and as

intended to allege the actual import of

the foregoing acts. In our opinion the

specific facts set forth would warrant a

finding that a servitude has been

imposed.

Id. at 329-30 (emphasis added). Significantly, the

new facts were that the government had replaced

the old guns with “heavy coast defence [sic] guns,”

once again fired its guns at will in peacetime, and

had established a fire-control station to service the

artillery. Id. at 329. These acts could be seen to

imply an intention to “‘subordinat[e] the strip of land

between the battery and the sea to the right and

privilege of the Government to fire projectiles

directly across it, ’” id. at 329, and hence physically

to “impose[]” an implied easement of fire, id. at 330.

Should any doubts remain that the taking

claim in Portsmouth Harbor turned not on economic

injury but rather on an intention of the government

to act in such a way as physically to subordinate

private property rights to the public interest, Justice

Brandeis’s dissent should eliminate them. He began

by stating his points of agreement with the majority.

I agree that, in time of peace, the

United States has not the unlimited

right to shoot from a battery over

adjoining private property, even if no

physical damage is done to it thereby;

that a single shot so fired [i.e., fired in

time of peace and without damage to

private property] may, in connection

with other conceivable facts, justify a

court in finding that the government

took, by eminent domain, the land or an

easement therein; and that such taking,

if made under circumstances which give

rise to a contract implied in fact to pay

compensation, will entitle the owner to

sue in the Court of Claims.

Id. at 330-31 (emphasis added).

As Justice Brandeis explained in the

remainder of his dissent, the “conceivable facts” and

“circumstances” he speaks of revolved around the

requirement that the claimants plead adequately the

government’s intention to take by its overt, physical

actions.

It is said that the petition alleges, in

general terms, a taking and intention to

take by the United States; that this

allegation alone, although general, is an

allegation of all the facts necessary to

give a cause of action; and that the

specification in detail of the facts relied

upon may be treated as surplusage. To

this contention there are several

answers.

Id. at 336. In the end, he concluded that the

claimants could not plead adequately the

government’s intention, either an avowed intention

or one implied by the authorized acts of its officers.

See id. at 337 (“The facts stated show, as indicated

above, not only an absence of taking and of intention

to take the claimants’ property, but also an absence

of authority to do so in those who did the acts relied

upon [i.e., installing and firing new guns].”).

Hence, contrary to the Respondents and Judge

Paez, both the majority and the dissent in

Portsmouth Harbor agreed that whether an

easement had been taken turned on whether the

government had an intention, or “abiding purpose,”

id. at 330, to fire guns in order physically to

“‘subordinat[e] the strip of [private] land . . . to the

right and privilege of the Government,’” id. at 329.

The physically invasive character of the practice

firing of the big coastal guns, although occurring

only sporadically, was the determinant. Impaired

economic use of the hotel played no role in deciding

the question.

Alongside Portsmouth Harbor, the Respondents

cite United States v. Causby, 328 U.S. 256 (1946).

See BIO at 14-15. Judge Paez does so as well,

stating that Causby applied the “same basic

principle” found in Portsmouth Harbor. Cedar Point,

956 F.3d at 1163. In the eyes of both Judge Paez

and the Respondents that principle is that takings

were found in those two cases only because the

“physical invasions substantially impaired the

plaintiffs’ use of their property.” BIO at 15; see

Cedar Point, 956 F.3d at 1163 (“loss . . . complete”;

“severe negative effects”).

As we have shown, that view of Portsmouth

Harbor does not withstand scrutiny. While some of

the language used in Causby might lend credence to

their view, the better angels of Causby understood

clearly the “philosophy of Portsmouth Harbor.”

Causby, 328 U.S. at 262-63. That “philosophy”

focused on those physical acts of the government

that represent “a definite exercise of complete

dominion and control over the surface of the land”

from the air (via artillery shells in Portsmouth

Harbor and via flights of heavy military aircraft in

Causby). Id. at 262. See Portsmouth Harbor, 260

U.S. at 329 (artillery fire as physical acts

“‘subordinating the strip of land between the battery

and the sea to the right and privilege of the

Government’”).

Hence, as in Portsmouth Harbor, it was the

character of the government’s action as a “direct

invasion,” Causby, 328 U.S. at 265-66, that

determined the question whether there was a taking.

In Causby, as in Portsmouth Harbor, the

government’s actions were such that “a servitude

ha[d] been imposed upon the land” physically. Id. at

267, 262 (“easement of flight”). Later cases of this

Court have seemed to similarly eschew any

minimum quantum of damages as a needed element

in the physical taking of an easement. See First

English Evangelical Lutheran Church of Glendale v.

Los Angeles County, 482 U.S. 304, 329–30 (1987)

(“diminution of value inquiry is unique to regulatory

takings”) (contrasting to Causby et al.); Tahoe-Sierra

Preservation Council, Inc. v. Tahoe Regional

Planning Agency, 535 U.S. 302, 322 (2002) (when

government “physically takes possession of an

interest in property . . . , it has a categorical duty to

compensate . . . . for that share no matter how

small”) (citing Causby et al.); Lucas v. South

Carolina Coastal Council, 505 U.S. 1003, 1015

(1992) (in easement case, observing “(at least with

regard to permanent [physical] invasions), no matter

how minute the intrusion, . . . we have required

compensation”) (citing Causby et al.).

In short, these two pre-Penn Central cases cannot

be impressed into the service of the Respondents’

defense. They support the Petitioners’ physical

invasion theory.

II. Kaiser Aetna Was Not Decided As A Penn

Central Regulatory Taking; The Easement

Resulted From An Imposed Physical

Invasion.

The Respondents’ reliance on Kaiser Aetna v.

United States, 444 U.S. 164 (1979), is equally

misplaced. Like the Ninth Circuit, they contend that

Kaiser Aetna illustrates that the facts of the present

case require the use of “a multi-factor regulatory

takings analysis under Penn Central.” BIO at 12; see

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

533-34 & n.8 (9th Cir. 2019) (strongly intimating

same). In fact, Kaiser Aetna was clearly not a Penn

Central case.

In Kaiser Aetna, the United States brought an

action against the owners of a marina.

The

government asserted that the changes that the

owners had made to a shallow, landlocked pond in

order to create the marina had made it subject to a

navigable servitude. Kaiser Aetna, 444 U.S. at 165.

The reason given was that the newly fashioned

marina was connected to the nearby bay, which was

deemed to be part of the navigable waters of the

United States. Id. at 165-66, 168. “Thus,” so the

government contended, “the public acquired a right

of access to what was once petitioners’ private pond.”

Id. at 166; see also id. at 168, 170.

In the

government’s view, a servitude could be obtained

without cost to the public because it was,

supposedly, the creation of background legal

principles governing such waters. See, e.g., Lucas,

505 U.S. at 1028-29 (“we assuredly would permit the

government to assert a permanent easement that

was a pre-existing limitation upon the land owner’s

title”) (emphasis omitted). The owners denied the

existence of a background servitude and claimed

that the government was engaged in an

uncompensated taking.

This Court prefaced its ruling with an important

caveat. It reminded the government that “navigable

waters of the United States” was a term whose

meaning varies according to the legal question being

asked. Kaiser Aetna, 444 U.S. at 170-71. The Court

noted that while the concept may define the scope of

the federal government’s power to regulate,

including its power to regulate the pond, “it does not

follow that the pond is also subject to a public right

of access,” even were it to contain navigable waters.

Id. at 172-73. This important categorical distinction

between regulation and physical taking underlies

much of the reasoning of the case.

Not surprisingly, then, when explaining why it

was ruling against the government, the Court noted

that the public access that the government was

trying to obtain went “so far beyond ordinary

regulation as to amount to a taking.” Id. at 178.

First, it pointed out that a navigational servitude

may be found only when waters “in their natural

condition are in fact capable of supporting public

navigation” and that in Kaiser Aetna, “prior to its

improvement, Kuapa Pond was incapable of being

used as a continuous highway for the purpose of

navigation in interstate commerce.” Id. at 175, 178.

Second, it observed that under the law of Hawai’i the

pond had always been considered to be private

property. Id. at 179. In effect the Court was saying

that the United States could not obtain the desired

servitude gratis, i.e., on the basis of background

legal principles of interstate commerce; if it wanted

to impose the servitude, it would have to pay for it.

See id. at 180. See also Lucas, 505 U.S. at 1029

(citing Kaiser Aetna).

In the pivotal passage of the decision, the

Court reasoned as follows:

In this case, we hold that the “right to

exclude,” so universally held to be a

fundamental element of the property

right, falls within this category of

interests that the Government cannot

take without compensation. This is not

a case in which the Government is

exercising its regulatory power in a

manner that will cause an insubstantial

devaluation of petitioners’ private

property; rather, the imposition of the

navigational servitude in this context

will result in an actual physical

invasion of the privately owned marina.

Compare Andrus v. Allard, 444 U.S. 51

at 65-66, 100 S.Ct. 318, at 326-327,

62 L.Ed.2d 210 [1979], with the

traditional taking of fee interests in

United States ex rel. TVA v. Powelson,

319 U.S. 266, 63 S.Ct. 1047, 87 L.Ed.

1390 (1943), and in United States v.

Miller, 317 U.S. 369, 63 S.Ct. 276,

87 L.Ed. 336 (1943). And even if the

Government physically invades only

an easement in property, it must

nonetheless pay just compensation. See

United States v. Causby, 328 U.S. 256,

265, 66 S.Ct. 1062, 1067, 90 L.Ed. 1206

(1946); Portsmouth Co. v. United States,

260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287

(1922).

Kaiser Aetna, 444 U.S. at 179-180 (emphasis added).

The citations given in that passage, which twice

mentions physical invasions, are decisive as to what

kind of taking analysis underlies Kaiser Aetna. The

Court says that a taking would occur because there

would be “an actual physical invasion” if public

access were appropriated, and its contrast of Allard

with Powelson and Miller shows that the Court

meant what it said.

Allard was issued only one week before Kaiser

Aetna and was explicitly decided based on Penn

Central, which had itself been decided only 18

months earlier. See Allard, 444 U.S. at 65-66 (citing

Penn Central and applying its approach).

Significantly, Allard disavowed any physical seizure

or invasion.

See id. at 65 (“The regulations

challenged here do not compel the surrender of the

artifacts, and there is no physical invasion or

restraint upon them.”) (emphasis added).

Right

there, Allard and Penn Central should be seen to be

inapplicable to Kaiser Aetna and to the “actual

physical invasion” the Court found would occur in

the “context” of that case. Kaiser Aetna, 444 U.S. at

180.

The other two cases of the contrast drawn by the

Court, Powelson and Miller, were decided decades

before Penn Central and, like Kaiser Aetna, both

involved actual physical invasion of private land.

See Powelson, 319 U.S. at 268 (“This case arises out

of condemnation by the United States on behalf of

the Tennessee Valley Authority of about 12,000

acres of land in North Carolina[.]”); Miller, 317 U.S.

at 88 (“The United States condemned a strip across

the respondents’ lands for tracks of the Central

Pacific Railroad[.]”).

It is at this point in Kaiser Aetna that the Court

cinched its reasoning about the navigational

servitude, saying that “even if the Government

physically invades only an easement in property, it

must nonetheless pay just compensation.” 444 U.S.

at 180 (emphasis added). Tellingly, as support it

cited Portsmouth Harbor and Causby, two cases

which concerned the physical imposition of an

easement. See supra pp. 3-11.

While Kaiser Aetna at one point (444 U.S. at 17475) acknowledges the takings law principles

“recently pointed out” in Penn Central and says later

(id. at 178) that the public access claimed by the

government is a taking “under the logic” of Penn

Central’s progenitor, Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393 (1922), Kaiser Aetna clearly

was not decided on the basis of a Penn Central

multifactor regulatory takings analysis. It was

decided on the principle that a permanent physical

invasion is a taking. See Lucas, 505 U.S. at 1029.

Despite occasional wording that might suggest

otherwise to the Respondents, that was clearly the

Court’s own view, as may be seen by its contrasting

one Penn Central case which involved “no physical

invasion” with four cases involving physical

invasions not unlike that it found in Kaiser Aetna

itself.

CONCLUSION

For the reasons given above, and contrary to the

Respondents’ arguments, the Court should decline to

find that physical invasions like those alleged here

should be analyzed as regulatory takings on the

authority of the three cases examined in this brief.

Respectfully submitted,

NEW ENGLAND LEGAL FOUNDATION,

By its attorneys,

/s/