Amicus Curiae Brief — Cedar Point Nursery, et al., Petitioners v. Victoria Hassid, et al.
Supreme Court briefJan 7, 2021
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No. 20-107
In the Supreme Court of the United States
CEDAR POINT NURSERY, ET AL., PETITIONERS
v.
VICTORIA HASSID, ET AL.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
IN SUPPORT OF REVERSAL
JEFFREY B. WALL
Acting Solicitor General
Counsel of Record
HASHIM M. MOOPPAN
Counselor to the
Solicitor General
JONATHAN D. BRIGHTBILL
ERIC GRANT
Deputy Assistant Attorneys
General
JONATHAN Y. ELLIS
AUSTIN L. RAYNOR
Assistants to the Solicitor
General
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
California Code of Regulations title 8, § 20900 (2020),
requires agricultural employers to admit labor union organizers onto the employers’ property for up to three
hours per day, 120 days per year, on an indefinite basis,
for the purpose of organizing the agricultural employees on the property. The question presented is whether
the regulation effects a per se physical taking under the
Fifth and Fourteenth Amendments to the United States
Constitution.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 2
A. Statutory and regulatory background ............................ 2
B. The present controversy................................................... 5
Summary of argument ................................................................. 8
Argument:
Indefinite legal authorization to physically invade
private property, even intermittently, is a per se taking,
absent circumstances not present here ............................... 10
A. Permanent legal authorization to physically invade
real property is a per se physical taking ....................... 11
1. Government-authorized physical invasions
impose harms distinct from government
restrictions on the use of property.......................... 12
2. Permanent legal authorization to physically
invade real property warrants per se treatment... 16
B. By imposing an indefinite access right, the access
regulation grants permanent legal authorization to
physically invade real property ..................................... 20
C. Other takings doctrines justify certain indefinite
legal access rights, but none applies here..................... 26
Conclusion ................................................................................... 33
TABLE OF AUTHORITIES
Cases:
ALRB v. Superior Court, 546 P.2d 687 (Cal.),
appeal dismissed, 429 U.S. 802 (1976) ...................... 2, 3, 30
Arkansas Game & Fish Comm’n v. United States,
568 U.S. 23 (2012) ......................................................... 10, 27
Armco Inc. v. Hardesty, 467 U.S. 638 (1984) ..................... 23
Ashland Oil, Inc. v. Caryl, 497 U.S. 916 (1990) .................. 23
Avery v. Midland County, 390 U.S. 474 (1968) .................. 23
(III)
IV
Cases—Continued:
Page
Bennis v. Michigan, 516 U.S. 442 (1996) ............................ 29
Dolan v. City of Tigard, 512 U.S. 374 (1994) ...................... 31
FCC v. Florida Power Corp., 480 U.S. 245 (1987) .............. 25
Horne v. Department of Agric., 576 U.S. 351 (2015) ......... 32
Hurtado v. United States, 410 U.S. 578 (1973)................... 29
Kaiser Aetna v. United States,
444 U.S. 164 (1979).................................................. 13, 15, 16
Keystone Bituminous Coal Ass’n v. DeBenedictis,
480 U.S. 470 (1987).............................................................. 13
Lech v. Jackson, 791 Fed. Appx. 711 (10th Cir. 2019),
cert. denied, 141 S. Ct. 160 (2020) ..................................... 29
Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) .......... 5, 27, 30
Loretto v. Teleprompter Manhattan CATV Corp.,
458 U.S. 419 (1982)..................................................... passim
Lucas v. South Carolina Coastal Council,
505 U.S. 1003 (1992).......................................... 10, 11, 28, 29
Montana Co. v. St. Louis Mining & Milling Co.,
152 U.S. 160 (1894) ....................................................... 26
NLRB v. Babcock & Wilcox Co.,
351 U.S. 105 (1956)...................................................... 4, 5, 27
Nollan v. California Coastal Comm’n,
483 U.S. 825 (1987)..................................................... passim
Palazzolo v. Rhode Island, 533 U.S. 606 (2001) ........... 12, 28
Pandol & Sons v. ALRB, 429 U.S. 802 (1976) .................... 23
Penn Central Transp. Co. v. New York City,
438 U.S. 104 (1978).....................................6, 8, 10, 12, 13, 17
Pennsylvania Coal Co. v. Mahon,
260 U.S. 393 (1922).............................................................. 12
Portsmouth Harbor Land & Hotel Co. v. United
States, 260 U.S. 327 (1922) ..................................... 13, 14, 26
Property Reserve, Inc. v. Superior Court,
375 P.3d 887 (Cal. 2016) ..................................................... 30
V
Cases—Continued:
Page
PruneYard Shopping Ctr. v. Robins, 447 U.S. 74
(1980) .................................................................................... 24
Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) ..... 31, 32
Tahoe-Sierra Preservation Council, Inc. v. Tahoe
Reg’l Planning Agency, 535 U.S. 302 (2002) ................... 12
United States v. Causby, 328 U.S. 256 (1946) ............... 14, 15
United States v. General Motors Corp.,
323 U.S. 373 (1945).............................................................. 11
United States v. Pewee Coal Co., 341 U.S. 114 (1951) ....... 11
Yee v. City of Escondido, 503 U.S. 519 (1992) .............. 13, 25
Constitution, statutes, and regulations:
U.S. Const.:
Amend. IV ........................................................................ 29
Amend. V .................................................................. 1, 5, 10
Takings Clause................................ 1, 10, 11, 12, 19, 28
Amend. XIV ................................................................. 5, 10
National Labor Relations Act, 29 U.S.C. 151 et seq............. 4
Agricultural Labor Relations Act, Cal. Lab. Code
§§ 1140 et seq. (West 2020) ................................................... 2
§ 1141 .................................................................................. 2
§ 1144 .................................................................................. 2
§ 1149 .................................................................................. 2
§§ 1151-1151.6 .................................................................... 2
§ 1152 .................................................................................. 2
§ 1153(a) ............................................................................. 2
§ 1160.3 ............................................................................... 2
Cal. Code Regs. tit. 8 (2020):
§ 20900 (1975) ..................................................................... 2
§ 20900(2) (1975) ................................................................ 3
§ 20900(4) (1975) ................................................................ 3
VI
Regulations—Continued:
Page
§ 20900(5) (1975) ................................................................ 3
§ 20900(e)(1)(A).................................................................. 3
§ 20900(e)(1)(B).................................................................. 3
§ 20900(e)(1)(B)-(C) ........................................................... 4
§ 20900(e)(1)(C).................................................................. 4
§ 20900(e)(3) ....................................................................... 4
§ 20900(e)(4)(A).................................................................. 4
Miscellaneous:
Restatement (Second) of Torts (1965) ..................... 22, 29, 30
In the Supreme Court of the United States
No. 20-107
CEDAR POINT NURSERY, ET AL., PETITIONERS
v.
VICTORIA HASSID, ET AL.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
IN SUPPORT OF REVERSAL
INTEREST OF THE UNITED STATES
This case concerns whether a state regulation that
requires property owners to grant access to union organizers is a per se taking under the Takings Clause
of the Fifth Amendment. The United States has a substantial interest in the preservation of constitutional
rights and the sound development of the relevant Fifth
Amendment principles. It also has a substantial interest in the application of those principles in the context
of the state regulation here, given the wide range of federal statutes and regulations that also require access to
private property in certain circumstances.
(1)
2
STATEMENT
A. Statutory And Regulatory Background
1. The California Agricultural Labor Relations Act
(ALRA or Act), Cal. Lab. Code §§ 1140 et seq., guarantees agricultural employees in California “the right to
self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection.” Cal. Lab. Code § 1152
(West 2020). 1 Section 1153(a) of the Act makes it an unfair labor practice for an agricultural employer in California “[t]o interfere with, restrain, or coerce agricultural employees in the exercise of the rights guaranteed
in Section 1152.” Cal. Lab. Code § 1153(a).
The California Agricultural Labor Relations Board
(ALRB or Board) is an administrative body created by
the Act and tasked with its implementation and enforcement. Cal. Lab. Code § 1141; see ALRB v. Superior
Court, 546 P.2d 687, 691-692 (Cal.) (Pandol & Sons), appeal dismissed, 429 U.S. 802 (1976). The Board is empowered to investigate and adjudicate charges of unfair
labor practices, Pandol & Sons, 546 P.2d at 691; see Cal.
Lab. Code §§ 1149, 1151-1151.6, and to issue cease-anddesist orders or “such other relief as will effectuate the
policies” of the Act, Cal. Lab. Code § 1160.3. The Act
further authorizes the Board to “make, amend, and rescind * * * such rules and regulations as may be necessary to carry out” the Act. Id. § 1144.
2. Shortly after the Act’s enactment, the ALRB issued the regulation at issue here, California Code of
Unless otherwise indicated, all references to Cal. Lab. Code are
to the West 2020 current version.
1
3
Regulations title 8, § 20900 (1975) (the access regulation), which governs access by nonemployee union organizers to the property of agricultural employers for
the purpose of organizing agricultural employees. Pandol & Sons, 546 P.2d at 692. The Board reasoned that
the effectiveness of agricultural employees’ organizational rights “depends in some measure on the ability of
employees to learn the advantages and disadvantages
of organization from others.” Cal. Code Regs. tit. 8,
§ 20900(2) (1975). It determined that, “[w]hen alternative channels of effective communication are not available,” the ALRA requires that “accommodation be made
between the right of unions to access and the legitimate
property and business interests of the employer.” Ibid.
And the Board concluded that the policies of the ALRA
would “best be served” by the adoption of categorical
access rules for agricultural employees, rather than the
“[r]elegation of the issues to case-by-case adjudication.”
Id. § 20900(4). The Board thus announced that it would
“consider the rights of employees under [the ALRA] to
include the right of access by union organizers to the
premises of an agricultural employer for the purpose of
organizing,” subject to certain conditions. Id. § 20900(5).
Under the access regulation, in its current form, agricultural union organizers for any particular labor organization are permitted entry onto an agricultural employer’s property for up to four 30-day periods in any
calendar year. Cal. Code Regs. tit. 8, § 20900(e)(1)(A)
(2020). Each period begins when the labor organization
serves the property owner with, and files with the
ALRB, a “notice of intention to take access onto the described property.” Id. § 20900(e)(1)(B). If a petition for
election is filed with the Board during the 30-day period, the right of access does not terminate until after
4
the fifth day following the completion of the ballot
count. Id. § 20900(e)(1)(B)-(C). The right of access then
recommences either 30 days or 13 months prior to when
another election may be directed, depending on the
source of the election bar. Id. § 20900(e)(1)(C).
During each period of access, union organizers may
enter the employer’s property each day for one hour before the start of the work day, one hour after the end of
the work day, and one hour during the lunch period “for
the purpose of meeting and talking with employees.”
Cal. Code Regs. tit. 8, § 20900(e)(3) (2020). Unions may
bring “two organizers for each work crew on the property,” as well as “one additional organizer for every 15
additional workers” in a crew consisting of more than 30
workers. Id. § 20900(e)(4)(A).
In granting such categorical access rights, the
ALRB departed from the approach this Court has taken
under similar provisions of the National Labor Relations Act (NLRA), 29 U.S.C. 151 et seq. In NLRB v.
Babcock & Wilcox Co., 351 U.S. 105 (1956), this Court
held that, as a general matter, the NLRA does not afford nonemployee union organizers the ability to enter
onto an employer’s property. Id. at 112. Like the ALRB,
the Court recognized the need for employees to “learn
the advantages of self-organization from others.” Id. at
113. But as relevant here, the Court held that proper
respect for employers’ property rights dictated that,
under the NLRA, the employer’s “right to exclude”
yields to its employees’ organizational rights only
“when the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels” and
only “to the extent needed to permit communication of
5
information on the right to organize.” Id. at 112; see
Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992).
B. The Present Controversy
1. Petitioner Cedar Point Nursery operates a
nursery in Dorris, California, raising strawberry plants.
Pet. App. A9, G4. The nursery employs approximately
100 year-round workers and 400 seasonal workers, none
of whom lives on company property. Id. at A9, G9. Petitioner Fowler Packing Company engages in grape
farming and packing operations in Fresno, California.
Id. at A11, G4. Fowler employs 1800-2500 people in its
field operations and 500 people in its packing facility in
Fresno. Id. at A11, G11. Fowler’s employees likewise
do not live on company property. Ibid.
Cedar Point alleges that, in 2015, after entering the
company’s property and distracting and intimidating its
workers, the United Farm Workers union served Cedar
Point with written notice of intention to take access
under the access regulation. Pet. App. A10, G9-G10.
Fowler alleges that the same union filed a charge with
the Board asserting that Fowler unlawfully blocked union organizers from entering Fowler’s property under
the access regulation, after the union provided the required notice of intention to take access. Id. at A11,
G11. Both Cedar Point and Fowler allege that, but for
the access regulation, they would exclude union organizers from their property. Id. at G10-G11.
2. a. In February 2016, petitioners filed suit in the
Eastern District of California against several members
of the ALRB in their official capacity, contending that
the access regulation effects an uncompensated taking
of their property rights, in violation of the Fifth and
Fourteenth Amendments to the U.S. Constitution. Pet.
6
App. G1-G25. Petitioners asked the court for a declaration that the access regulation is unconstitutional as applied to them and an order enjoining respondents from
enforcing the regulation against them. Id. at G16-G17.
The district court denied a motion for a preliminary injunction and dismissed petitioners’ claims. Id. at D1D20 (denying preliminary injunction on takings claim);
id. at B1-B14 (dismissing complaint).
b. The court of appeals affirmed. Pet. App. A1-A31.
The court reasoned that this Court’s cases recognize
“three categories of regulatory action * * * ‘that are
functionally equivalent to the classic taking in which
government directly appropriates private property or
ousts the owner from his domain’ ”: first, a regulation
that “ ‘requires an owner to suffer a permanent physical
invasion of her property’ ”; second, a regulation that
“ ‘completely deprives an owner of “all economically
beneficial us[e]” of her property’ ”; and third, a regulation of property that constitutes a taking under the multifactor standard set forth in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). Pet.
App. A14-A15 (citation omitted). The court rejected petitioners’ contention that the access regulation effects
an uncompensated taking by requiring petitioners to
suffer a permanent physical invasion of their property.
Id. at A15.
The court of appeals recognized that this Court had
previously held in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), that requiring a property
owner to grant a permanent easement across its beachfront property for the public would constitute a permanent physical occupation requiring compensation. Pet.
App. A17 (quoting Nollan, 483 U.S. at 832). But the
court of appeals concluded that the access regulation
7
did not impose a similar invasion. It reasoned that, although the regulation grants access rights without any
“ ‘contemplated end-date,’ ” it does not grant union organizers a “ ‘continuous right to pass to and fro,’ ” and
thus “does not allow random members of the public to
unpredictably traverse [petitioners’] property 24 hours
a day, 365 days a year,” as did the easement in Nollan.
Id. at A17-A18 (quoting Nollan, 483 U.S. at 832).
Judge Leavy dissented. Pet. App. A26-A31. In his
view, the takings analysis should be informed by this
Court’s decision in Babcock & Wilcox and its progeny.
Id. at A28-A29. Judge Leavy observed that neither
Babcock & Wilcox nor any other decision from this
Court has ever recognized a right of nonemployee labor
organizers to enter an employer’s private property
where none of the employees lived on the employer’s
premises such that they were not accessible through
non-trespassory means. Id. at A26. And he reasoned
that, absent such inaccessibility, granting union organizers such “ongoing access * * * multiple times a day
for 120 days a year” imposed “a physical, not regulatory, occupation” that amounts to an unconstitutional
uncompensated taking. Id. at A29; see id. at A26.
c. The court of appeals denied a petition for rehearing en banc by a deeply divided vote. Pet. App. E1-E32.
Judge Paez, joined by Judge Fletcher, both members of the panel majority, concurred in the denial of
rehearing en banc. Pet. App. E4-E10. In defending the
panel’s decision, Judge Paez reiterated the panel’s conclusion that “a ‘permanent physical invasion’ occurs
[only] when the state grants the public a ‘permanent
and continuous right to pass to and fro, so that the real
property may continuously be traversed.’ ” Id. at E7 (citation omitted).
8
Judge Ikuta, joined by seven other judges, dissented
from the denial of rehearing en banc. Pet. App. E10-E32.
Judge Ikuta explained that, in her view, the access regulation granted union organizers an “easement in
gross” to enter the property of agricultural employers.
Id. at E23; see id. at E23-E24. She explained that an
easement in gross is a “ ‘personal interest’ ” in property
that “ ‘gives its owner a right to do something on the
land of another.’ ” Id. at E17 (citations omitted). She
reasoned that the various restrictions on the union’s
right of access did not alter that the regulation appropriated an easement in gross because restrictions are a
common feature of easements. Id. at E23-E24. And she
concluded that because the access regulation had appropriated an interest in real property, it constituted “a per
se taking that requires just compensation.” Id. at E23
(citation omitted).
SUMMARY OF ARGUMENT
The indefinite legal authorization to invade private
property, even intermittently, is a per se taking, absent
circumstances not present here.
A. To determine whether regulatory action short of
formal appropriation effects a taking of property, this
Court ordinarily applies an ad hoc, factual approach under the standard articulated in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). The
Court has long recognized, however, that even under
that approach, government-authorized physical invasions impose a unique burden on landowners that favors
finding a taking of property. In a pair of more recent
cases, that recognition has crystallized into a per se rule
that, when the government permanently authorizes
such invasions, it categorically effects a taking.
9
In Loretto v. Teleprompter Manhattan CATV Corp.,
458 U.S. 419 (1982), the Court held that whenever the
government authorizes a “permanent physical occupation of real property,” however minimal, it effects a taking. Id. at 427. The Court thus found that a state regulation permitting the installation of a one-half-inchdiameter cable on the roof of a landlord’s property effected a per se taking. And in Nollan v. California
Coastal Commission, 483 U.S. 825 (1987), the Court applied the same per se rule to the permanent authorization for third parties to continuously invade private
property, even absent literal permanent occupation—
there, a public right of access through private beachfront property. Id. at 831.
B. By imposing an indefinite access right, the access
regulation effects a taking under the same per se rule.
Although the regulation authorizes intermittent thirdparty access (up to three hours per day, 120 days per
year), rather than continuous (24 hours, 365 days), that
distinction is immaterial under this Court’s takings jurisprudence. Providing indefinite authorization for even
intermittent physical invasions by third parties still deprives property owners of not only the right to exclude,
but also the right to possess and use the portions of their
property while invaded by those third parties. And even
if intermittent, those invasions cause the same special
kind of injury provoked by the intrusion of a stranger.
As a practical matter, a per se rule for any such indefinite legal access right avoids line-drawing problems that
would be presented in determining what level of access
short of round-the-clock would effect a taking, leaving
such considerations to properly inform compensation.
10
C. The per se rule articulated in Loretto and Nollan
is narrow. Temporary invasions not authorized pursuant to an indefinite legal access right fall outside the
rule altogether. Thus, neither the NLRA’s inaccessibility exception nor government-induced temporary floodings are per se takings. See Loretto, 458 U.S. at 434
n.11; Arkansas Game & Fish Comm’n v. United States,
568 U.S. 23, 38-39 (2012). Moreover, this Court has recognized that even when a per se rule would otherwise
apply, there are certain circumstances where just compensation is not required. The Court should make clear
that the same is true here. If an access right merely
reflects a limitation on property rights consistent with
background principles of law, it does not qualify as a
taking at all. See Lucas v. South Carolina Coastal
Council, 505 U.S. 1003, 1027 (1992). And separately, the
government may condition the performance of certain
activities on the uncompensated cession of property
rights. See, e.g., Nollan, 483 U.S. at 836. But none of
those doctrines saves the regulation here.
ARGUMENT
INDEFINITE LEGAL AUTHORIZATION TO PHYSICALLY
INVADE PRIVATE PROPERTY, EVEN INTERMITTENTLY,
IS A PER SE TAKING, ABSENT CIRCUMSTANCES NOT
PRESENT HERE
The Takings Clause, as incorporated against the
States by the Fourteenth Amendment, provides that
“private property [shall not] be taken for public use,
without just compensation.” U.S. Const. Amend. V; see
Nollan v. California Coastal Comm’n, 483 U.S. 825, 827
(1987). Whether a government regulation of property
rights effects such a taking is typically determined by
the multifactor balancing test set out in Penn Central
Transportation Co. v. New York City, 438 U.S. 104 (1978).
11
Government-authorized physical invasions, however,
impose a particularly serious burden on property
rights, and a permanent authorization to physically invade real property effects a taking “without regard to
whether the action achieves an important public benefit
or has only minimal economic impact on the owner.”
Loretto v. Teleprompter Manhattan CATV Corp., 458
U.S. 419, 434-435 (1982). Because California’s access
regulation legally authorizes physical invasions of agricultural employers’ property by labor organizers on an
indefinite basis, it effects such a per se taking even if
the invasions are intermittent. To be clear, however,
the per se rule applied here is narrow. It does not encompass temporary invasions in the absence of an indefinite legal access right. And this Court has correctly
recognized that government-authorized invasions are
not per se takings when they are justified by background principles of state property or tort law or imposed as valid conditions on regulated conduct. No such
doctrine justifies the access regulation, however, and so
the Ninth Circuit’s decision should be reversed.
A. Permanent Legal Authorization To Physically Invade
Real Property Is A Per Se Physical Taking
The paradigmatic application of the Takings Clause
involves a “ ‘direct appropriation’ of property, or the
functional equivalent of a ‘practical ouster of [the
owner’s] possession.” Lucas v. South Carolina Coastal
Council, 505 U.S. 1003, 1014 (1992) (citations omitted;
brackets in original). Such a taking typically occurs, for
example, when the government formally takes title to
an interest in property, see, e.g., United States v. General Motors Corp., 323 U.S. 373, 375 (1945), or when the
government physically takes possession of property,
see, e.g., United States v. Pewee Coal Co., 341 U.S. 114,
12
115 (1951). The Takings Clause, however, also constrains regulatory actions short of classic takings. Absent such protection, the Court has observed that “the
natural tendency of human nature” would be to exercise
an unconstrained authority to redefine property interests “more and more until at last private property disappears.” Pennsylvania Coal Co. v. Mahon, 260 U.S.
393, 415 (1922).
To determine whether regulation of property has
gone “too far,” the Court has generally “engage[d] in
‘essentially ad hoc, factual inquiries’ ” into the circumstances presented in each case. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg’l Planning Agency,
535 U.S. 302, 326 (2002) (citation omitted). Even under
that standard, the Court has long recognized that
government-authorized physical invasions—as opposed
to restrictions on the use of property—impose distinctive
burdens and can, in important respects, resemble classic takings involving physical appropriation. In more recent decades, that recognition has crystallized into a per
se rule that, when a government permanently authorizes
physical invasions as the access regulation does here, it
categorically effects a taking.
1. Government-authorized physical invasions impose
harms distinct from government restrictions on the
use of property
Under the familiar Penn Central standard for regulatory takings, the Court considers (1) “[t]he economic
impact of the regulation on the claimant”; (2) “the
character of the government action”; and (3) “the extent
to which the regulation has interfered with distinct
investment-backed expectations.” 438 U.S. at 124. And
although those factors represent “important guideposts” for the Court’s consideration, Palazzolo v. Rhode
13
Island, 533 U.S. 606, 634 (2001) (O’Connor, J., concurring), the Court has also looked to “the purpose of the
regulation” and, more broadly, whether “the regulation
has unfairly singled out the property owner to bear a
burden that should be borne by the public as a whole.”
Yee v. City of Escondido, 503 U.S. 519, 523 (1992).
The Court has made clear in applying that standard,
however, that government-authorized physical invasions are a particularly serious intrusion on property
rights. The Court has explained that the right to exclude is “one of the most essential sticks in the bundle
of rights that are commonly characterized as property.”
Loretto, 458 U.S. at 433 (quoting Kaiser Aetna v.
United States, 444 U.S. 164, 176 (1979)). Thus, “[a] ‘taking’ may more readily be found when the interference
with property can be characterized as a physical invasion by government, than when interference arises from
some public program adjusting the benefits and burdens of economic life to promote the common good.”
Penn Central, 438 U.S. at 124 (citation omitted); see,
e.g., Keystone Bituminous Coal Ass’n v. DeBenedictis,
480 U.S. 470, 488 & n.18 (1987) (“Many cases before and
since [Mahon] have recognized that the nature of the
State’s action is critical in takings analysis.”).
In Portsmouth Harbor Land & Hotel Co. v. United
States, 260 U.S. 327 (1922), for example, the Court considered whether the United States’ physical invasion of
another’s property by gun fire amounted to a taking.
The petitioner alleged that the United States had taken
a servitude across its property located between the government’s land and the ocean, by “set[ting] up heavy
coast defense guns with the intention of firing them
over [petitioner’s] land” and doing so on several occasions. Id. at 329; see id. at 328. Although the Court
14
noted that, standing alone, the occasional invasion of the
petitioner’s land would be considered at most a trespass, not a taking, the Court explained that a more systematic intrusion warranted different treatment. Id. at
329-330. The Court reasoned that, if the government
had acted “with the purpose and effect of subordinating
[a] 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, 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.” Id.
at 329 (citation omitted). Indeed, if the United States
had the “admitted intent to fire across the claimants’
land at will” and fired even “a single shot,” the “taking
of a right would be complete.” Ibid.
United States v. Causby, 328 U.S. 256 (1946), is
similar. In that case, the United States entered into a
month-to-month lease with a private airport for use during World War II. Id. at 258-259. During the leasehold,
the government frequently and regularly flew heavy
bombers, transports, and fighter jets in and out of the
airport. Ibid. The respondents owned and operated a
commercial chicken farm on their nearby land, and the
flight path from one runway passed directly over their
property at a height of 83 feet. Id. at 258. The respondents filed an inverse-condemnation suit. Ibid.
This Court treated it as clear that, if the flights had
rendered the land unusable, “there would be a taking
compensable under the Fifth Amendment.” Causby,
328 U.S. at 261. Such an “easement of flight,” if “permanent and not merely temporary, normally would be
the equivalent of a fee interest.” Id. at 261-262. The
Court found “no material difference” in the fact that the
15
“enjoyment and use of the [respondents’] land” was “not
completely destroyed.” Id. at 262. For physical intrusions, “it is the character of the invasion, not the amount
of damage resulting from it, so long as the damage is
substantial, that determines the question whether it is
a taking.” Id. at 266 (citation omitted). Because “the
frequent, low-level flights” plainly damaged the respondents’ property, the Court determined that “a servitude ha[d] been imposed” for which compensation was
required. Id. at 267.
Finally, in Kaiser Aetna v. United States, supra, the
Court considered whether the government’s creation of
a “right of access to what was once [a] private pond” effected a taking that required compensation. 444 U.S. at
166. There, a real-estate developer had undertaken improvements to a private pond in order to convert it into
a marina. Id. at 166-167. After the developer increased
the average depth of the access channel and connected
the pond to the ocean, the government argued that the
pond had become “a navigable water of the United
States.” Id. at 168; see id. at 167-168. As a result, the
government claimed that the developer was precluded
from denying public access to the marina. Id. at 168;
see id. at 170.
This Court held that granting such a public access
right would effect a taking. The Court agreed that the
improvements to the pond rendered it “navigable waters” within “the boundaries of Congress’ regulatory
authority under the Commerce Clause,” and thus “Congress could assure the public a free right of access to
the [marina] if it so chose.” Kaiser Aetna, 444 U.S. at
172, 174 (emphasis added). But the Court concluded
that doing so would “go[ ] so far beyond ordinary regulation * * * as to amount to a taking.” Id. at 178. It
16
explained that “the right to exclude others” is “one of
the most essential sticks in the bundle of rights that are
commonly characterized as property.” Id. at 176. And
it found that, because the “navigational servitude”
would “result in an actual physical invasion of the privately owned marina,” it would cause a substantial “devaluation of petitioners’ private property.” Id. at 180.
The Court reasoned that even if the government would
take “only an easement in property, it must nonetheless
pay just compensation.” Ibid.
2. Permanent legal authorization to physically invade
real property warrants per se treatment
This Court’s cases have thus repeatedly made clear
that government-authorized physical invasions impose
an unusually serious burden on landowners for purposes
of determining whether there is a taking. In two more
recent cases—Loretto v. Teleprompter Manhattan
CATV Corp., supra, and Nollan v. California Coastal
Commission, supra—the Court has crystallized that
principle into a per se rule that applies when, as here, a
government provides permanent legal authorization to
physically invade real property.
a. In Loretto, the Court considered whether “a minor but permanent physical occupation of an owner’s
property authorized by government” constituted a “taking.” 458 U.S. at 421. To facilitate tenant access to cable television, New York law required landlords to “permit a cable television company to install its cable facilities” on the landlord’s property. Id. at 421, 423. The
company had “ ‘installed a cable slightly less than onehalf inch in diameter’ ” along the side of the landlord’s
building and “two large silver boxes” on the roof. Id. at
422 (citation omitted). New York courts rejected the
17
landlord’s takings claim. Id. at 424-425. This Court reversed. Id. at 421.
The Court began by observing that, ordinarily, to determine “whether compensation is constitutionally due
for a government restriction of property, * * * the
Court must engage in ‘essentially ad hoc, factual inquiries.’ ” Loretto, 458 U.S. at 426 (quoting Penn Central,
438 U.S. at 124). Surveying its precedents, the Court
noted that, while it had “long considered a physical intrusion by government to be a property restriction of an
unusually serious character for purposes of the Takings
Clause,” temporary invasions or “government action[s]
outside the owner’s property that cause[d] consequential damages within”—e.g., through flooding—call for
such a fact-specific approach. Id. at 426, 428. But the
Court noted that “[t]he one incontestable case for compensation (short of formal expropriation) seems to occur when the government deliberately brings it about
that its agents, or the public at large, ‘regularly’ use, or
‘permanently’ occupy, space or a thing which theretofore was understood to be under private ownership.”
Id. at 427 n.5 (citation omitted); see id. at 427-432.
“In short,” the Court observed, when the government authorizes or effects “a permanent physical occupation” of real property, its cases “uniformly have found
a taking to the extent of the occupation, without regard
to whether the action achieves an important public benefit or has only minimal economic impact on the owner.”
Loretto, 458 U.S. at 434-435. “In such a case, ‘the character of the government action’ not only is an important
factor in resolving whether the action works a taking but
also is determinative.” Id. at 426.
18
As the Court explained, there are good reasons for
treating permanent physical occupations as categorically distinct from temporary invasions or other, lessintrusive government regulations. “[A] permanent physical occupation of another’s property * * * is perhaps
the most serious form of invasion of an owner’s property
interests,” because it does not “take a single ‘strand’
from the ‘bundle’ of property rights: it chops through
the bundle, taking a slice of every strand.” Loretto,
458 U.S. at 435. When the government authorizes such
a permanent occupation, “the owner has no right to possess the occupied space himself, and also has no power
to exclude the occupier from possession and use of the
space.” Ibid.
In addition, “an owner suffers a special kind of injury
when a stranger directly invades and occupies the
owner’s property.” Loretto, 458 U.S. at 436. Property
law, the Court observed, “has long protected an owner’s
expectation that he will be relatively undisturbed at
least in the possession of his property.” Ibid. A law that
permits another to permanently occupy one’s land thus
“is qualitatively more severe than a regulation of the
use of property, even a regulation that imposes affirmative duties on the owner.” Ibid.; see id. at 440 (affirming that States have “broad power to regulate * * * the
landlord-tenant relationship,” but may “not require the
landlord to suffer the physical occupation of a portion of
his building by a third party”).
Finally, as a practical matter, the Court observed
that a categorical rule “avoids otherwise difficult linedrawing problems,” reasoning that “constitutional protection for the rights of private property cannot be
made to depend on the size of the area permanently occupied.” Loretto, 458 U.S. at 436-437. The Court also
19
noted that determining “whether a permanent physical
occupation has occurred presents relatively few problems of proof,” because “[t]he placement of a fixed
structure on land or real property is an obvious fact that
will rarely be subject to dispute.” Id. at 437. Beyond
that fact, the Court reasoned, the extent of the occupation is properly considered in determining the compensation due, not whether there was a taking “in the first
instance.” Id. at 438.
b. In Nollan, the Court extended Loretto’s per se
rule to a permanent authorization for third parties to
physically invade real property. Rather than authorizing a permanent physical occupation, in the literal sense
of a cable installation, the State there had required, as
a condition of a building permit, that the owners of
beachfront property grant a right of access “across
their beachfront available to the public on a permanent
basis.” Nollan, 483 U.S. at 831. The property owners
argued that the condition imposed an uncompensated
taking that violated the Takings Clause. Id. at 827.
This Court agreed. Id. at 841-842.
Before considering whether the requirement was a
valid permitting condition, see p. 31, infra, the Court
expressed “no doubt” that, had California simply required the owners to grant the public a right of access,
it would have amounted to a taking. Nollan, 483 U.S. at
831. In the Court’s view, “[t]o say that the appropriation of a public easement across a landowner’s premises
does not constitute the taking of a property interest but
rather * * * ‘a mere restriction on its use’ is to use
words in a manner that deprives them of all their ordinary meaning.” Ibid. (citation omitted). It noted that,
“[i]ndeed, one of the principal uses of the eminent domain power is to assure that the government be able to
20
require conveyance of just such interests, so long as it
pays for them.” Ibid.
The Court acknowledged that, “[p]erhaps because
the point is so obvious, we have never been confronted
with a controversy that required us to rule upon it,” but
concluded that “our cases’ analysis of the effect of other
governmental action leads to the same conclusion.”
Nollan, 483 U.S. at 831. The Court observed that it had
“repeatedly held that, as to property reserved by its
owner for private use, the right to exclude others is one
of the most essential sticks in the bundle of rights that
are commonly characterized as property.” Ibid. (brackets and internal quotation marks omitted). And it explained that a “ ‘permanent physical occupation’ has occurred, for purposes of th[e Loretto] rule, where 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.
B. By Imposing An Indefinite Access Right, The Access
Regulation Grants Permanent Legal Authorization To
Physically Invade Real Property
Under the logic of this Court’s precedents, the access
regulation is a per se taking. It requires agricultural
employers to permit union organizers onto their private
property for up to three hours per day, 120 days per
year, as long as the property remains a place of agricultural employment, with no “contemplated end-date.”
Pet. App. A17; see pp. 3-4, supra. In so doing, it creates
a permanent authorization for third parties to physically invade the employers’ land. And while the access
it authorizes is intermittent, rather than round-the-
21
clock, that is immaterial. The court of appeals’ contrary
analysis is unpersuasive.
1. Under Loretto and Nollan, a regulation like the
one here that indefinitely authorizes physical invasions
onto real property effects a per se taking, even if the
authorized access is intermittent. As the Court recognized in Loretto, “[t]he one incontestable case for compensation (short of formal expropriation) seems to occur when the government deliberately brings it about
that its agents, or the public at large, ‘regularly’ use, or
‘permanently’ occupy, space or a thing which theretofore was understood to be under private ownership.”
458 U.S. at 427 n.5 (citation omitted). Loretto endorsed
that rule in the context of a permanent “occupation,”
and Nollan makes clear that the same rule applies to
government-mandated third-party access rights imposed “on a permanent basis,” “even though no particular individual is permitted to station himself permanently upon the premises.” 483 U.S. at 831, 832.
Moreover, as in Loretto, a per se takings rule for any
indefinite authorization to physically invade private
property “has more than tradition to commend it.” 458
U.S. at 435. Nearly all of the reasons offered in Loretto
and Nollan for a per se rule apply equally here. As with
a permanent occupation, any time the government provides permanent authority for even intermittent physical invasions, it “does not simply take a single ‘strand’
from the ‘bundle’ of property rights: it chops through
the bundle, taking a slice of every strand.” Ibid. The
property owner loses its ability to occupy his property
himself to the extent of any invasion because it loses the
“power to exclude” third parties “from possession and
use of th[at] space.” Ibid.
22
As with a permanent occupation, an indefinite authorization to physically invade real property also subjects the property owner to the “special kind of injury”
caused by a “stranger directly invad[ing] and occup[ying] the owner’s property.” Loretto, 458 U.S. at 436.
The common law has long recognized that any intentional physical invasion of land causes an independent
harm to the owner, even if the invasion “causes no harm
to the land, its possessor, or to any thing or person in
whose security the possessor has a legally protected
interest.” Restatement (Second) of Torts § 163 (1965)
(Restatement). If anything, the intrusion is more
offensive when the deprivation of the right to exclude
pertains to individuals—let alone individuals asserting
interests adverse to the property owner—rather than a
minor, physical installation like a cable along the roof of
an apartment building.
In addition, as a practical matter, a categorical rule
applying to any indefinite access right similarly “avoids
otherwise difficult line-drawing problems.” Loretto,
458 U.S. at 436. Even respondents agree that, if the
government mandates “round-the-clock access by the
general public” to private property, a physical taking
has occurred. Br. in Opp. 13. But the situation would
not be materially different if the right of access applied
indefinitely throughout the year except certain holidays, or only during peak months of growing seasons—
just as Nollan would have been no different if the
beachfront easement had applied only during warm
months or daytime hours. “[C]onstitutional protection
for the rights of private property,” Loretto, 458 U.S. at
436, should not depend on the number of hours or days
that a permanent right of access is or may be used by
uninvited third parties.
23
Finally, whether such an indefinite access right has
been imposed “presents relatively few problems of
proof.” Loretto, 458 U.S. at 437. Just as the “placement
of a fixed structure on land * * * is an obvious fact,” so
is the imposition of an indefinite legal access right to
private property, even if only for certain periods of
every day or every year. Ibid. As with a permanent
occupation, the extent of the permanently authorized
access should be a “relevant factor in determining the
compensation due.” Ibid. But because that is so, “there
is less need to consider the extent of the [invasion] in
determining whether there is a taking in the first instance.” Id. at 437-438. 2
2. The court of appeals’ contrary analysis is unpersuasive. The court principally relied on its view that,
unlike the easement in Nollan, an indefinite legal right
for intermittent access “does not allow random members of the public to unpredictably traverse the[ ] property 24 hours a day, 365 days a year.” Pet. App. A17A18; see id. at E8 (Paez, J., concurring in denial of rehearing en banc) (noting that “the Access Regulation
does not authorize ‘continuous’ access to the Growers’
property”). That reasoning is misplaced.
The critical feature of the easement in Nollan was
not that anyone could or did exercise the access right
In 1976, this Court dismissed “for want of substantial federal
question” a direct appeal from the California Supreme Court, presenting a takings challenge to the access regulation. Pandol & Sons
v. ALRB, 429 U.S. 802, 802. “The Court gives less deference to such
summary dispositions,” Ashland Oil, Inc. v. Caryl, 497 U.S. 916, 920
n.* (1990) (per curiam), particularly where, as here, they have been
“severely undermined” by subsequent decisions. Avery v. Midland
County, 390 U.S. 474, 479 n.4 (1968); see, e.g., Armco Inc. v. Hardesty, 467 U.S. 638, 644 n.7 (1984) (finding it “necessary not to follow
such a precedent when the issue [wa]s given plenary consideration”).
2
24
around the clock. As the Court recognized, the easement did not permit any “particular individual * * * to
station himself permanently upon the premises.” Nollan, 483 U.S. at 832. And as the dissent observed, it was
not clear that as a practical matter anyone could access
the Nollans’ property 365 days a year. See id. at 854
(asserting that, “for a portion of the year,” shifting tides
would make “public passage” through the property
owners’ beachfront “impossible”). Instead, the decisive
aspect of the regulations in both Loretto and Nollan was
that the right of third parties to invade was indefinitely
granted. See Loretto, 458 U.S. at 439 (“So long as the
property remains residential and a CATV company
wishes to retain the installation, the landlord must permit it.”). Here too, as long as the property is used for
agricultural employment, the employer must permit access by nonemployee union organizers during the times
specified in the regulation.
This Court’s decision in PruneYard Shopping Center
v. Robins, 447 U.S. 74 (1980), is not to the contrary.
There, the California Supreme Court interpreted the
California Constitution to prohibit the owner of a shopping center generally open to the public from adopting
“a policy not to permit any visitor or tenant to engage
in any publicly expressive activity, including the circulation of petitions, that [wa]s not directly related to [the
shopping center’s] commercial purposes.” Id. at 77; see
id. at 77-78. The Court rejected the owner’s takings
claim under the Penn Central framework. Id. at 82-85.
That holding does not govern here. The property
owner in PruneYard had already invited members of
the general public onto its property, so long as they did
not engage in particular expressive activity once there.
As a result, the California Supreme Court’s holding did
25
“not authorize an unwanted physical occupation,” but
rather regulated only the owner’s “use of [its] property.” Yee, 503 U.S. at 532. The Court has consistently
rejected attempts to characterize regulations of the relationship between property owners and their invitees
as per se physical takings. See ibid. (rejecting a similar
challenge to a rent control ordinance on a mobile home
park); FCC v. Florida Power Corp., 480 U.S. 245, 252
(1987) (rejecting a claim that “it is a taking under
Loretto for a tenant invited to lease at a rent of $7.15 to
remain at the regulated rent of $1.79”). As the Court
explained in those cases, “it is the invitation * * * that
makes the difference.” Yee, 503 U.S. at 532 (citation
omitted). Indeed, Nollan distinguished PruneYard in
part on this very ground, emphasizing that “the owner
had already opened his property to the general public.”
483 U.S. at 832 n.1. Petitioners have extended no such
invitation here.
Finally, the court of appeals reasoned that petitioners could not show a per se taking because “the sole
property right affected by the regulation is the right to
exclude.” Pet. App. A18. But that reasoning gives short
shrift to this Court’s repeated recognition that the right
to exclude is an “essential stick[ ] in the bundle of
rights.” Nollan, 483 U.S. at 831 (emphasis added; citation omitted). While it is undoubtedly true that the deprivation of other rights in the bundle—like the right to
certain uses—in many cases is not “independently sufficient to establish a taking,” Loretto, 458 U.S. at 436, this
Court’s cases demonstrate that the deprivation of the
right to exclude imposes a unique burden. And the insight of Loretto and Nollan is that when such a deprivation ripens to a permanent legal access right, a property owner has not been deprived of only its right to
26
exclude. Any such indefinite authorization to physically
invade real property “chops through the bundle, taking
a slice of every strand.” Loretto, 458 U.S. at 435. To the
extent of the invasion, the landowner is deprived not
only of the right to exclude, but also his ability to use
and “possess the occupied space himself.” Ibid. The union organizer and the employer (or its employees) cannot occupy and use the same physical space, just as the
landlord in Loretto could not occupy and use the same
physical space as the cable box and wires on his building. The court of appeals erred in ignoring that reality.
C. Other Takings Doctrines Justify Certain Indefinite
Legal Access Rights, But None Applies Here
The per se rule applied here is “narrow.” Loretto, 458
U.S. at 441. Temporary invasions that are not pursuant
to a permanent access right do not fall within the scope
of the rule at all. In addition, this Court has recognized
certain circumstances where even a permanent access
right would not qualify as a taking. If a permanent access right merely reflects a limitation on property
rights consistent with background principles of law that
inhere in the title itself, it will not qualify as a taking.
And separately, the government may condition the performance of certain activities on the uncompensated
concession of property rights. The Court should make
clear that its decision here does not call into question
any of these doctrines, none of which justifies the access
regulation.
1. At the threshold, the per se rule applies only to
permanent physical occupation or permanent legal authorization to physically invade real property. Sporadic, temporary invasions thus fall outside the per se
rule because they are not indefinite. See, e.g., Portsmouth, 260 U.S. at 329-330 (bullets); Montana Co. v. St.
27
Louis Mining & Milling Co., 152 U.S. 160, 169 (1894)
(inspections). And even recurrent temporary invasions
are not covered unless they take place pursuant to an
indefinite legal right of access.
This Court has thus rightly held that the NLRA’s inaccessibility exception recognized in NLRB v. Babcock
& Wilcox Co., 351 U.S. 105, 113 (1956), is not a per se
taking. See Loretto, 458 U.S. at 434 n.11. That “temporary and limited” exception does not grant access to any
employer’s property on a permanent basis. Ibid. (citation omitted). Rather, it applies only after the union
“show [s] that no other reasonable means of communicating its organizational message to the employees exists” and only “to the extent” of that necessity.
Lechmere, Inc. v. NLRB, 502 U.S. 527, 534-535 (1992)
(citations and emphasis omitted). When the necessity
ends, so does the access right. By contrast, the California regulation does not require any comparable showing
of necessity.
Similarly, temporary flooding caused by government
conduct outside the property, even if recurring, is not a
per se taking. In contrast to the access regulation—
which functionally appropriates a limited easement for
third parties—such invasions involve complex questions
of causation, are subject to a multifactor takings analysis, and are often properly regarded as merely potential
torts. See Arkansas Game & Fish Comm’n v. United
States, 568 U.S. 23, 38-40 (2012); Loretto, 458 U.S. at 428
(“distinguish[ing] between flooding cases involving a
permanent physical occupation, on the one hand, and
cases involving a more temporary invasion, or government action outside the owner’s property that causes
consequential damages within, on the other”).
28
2. In addition, the Takings Clause has no role to play
“if the logically antecedent inquiry into the nature of the
owner’s estate shows” that the asserted property rights
“were not part of his title to begin with.” Lucas, 505
U.S. at 1027-1028. In Lucas, the Court explained that
restrictions that background principles of state law “already place upon land ownership” “inhere in the title itself.” Id. at 1029. Where government action reflects
such a limitation, no compensation is owed because the
government has not taken anything in the first place.
Thus, even in the context of a “ ‘permanent physical occupation’ of land,” this Court has noted that it “assuredly would permit the government to assert a permanent easement that was a pre-existing limitation upon
the land-owner’s title.” Id. at 1028.
Although Lucas did not specify what counts as a
“pre-existing” limitation on title, 505 U.S. at 1028, the
Court has suggested that those limitations deeply
rooted in state property and tort law qualify. The Lucas
Court observed that a State could prohibit activities
that were “always unlawful,” noting that “it was open
to the State at any point to make the implication of
those background principles of nuisance and property
law explicit.” Id. at 1030 (emphasis altered). Similarly,
in Palazzolo, the Court described the concept “in terms
of those common, shared understandings of permissible
limitations derived from a State’s legal tradition.” 573
U.S. at 630.
The main background limitation described in Lucas
was the prohibition on nuisance activities. The Lucas
Court observed that a government regulation designed
to abate nuisances would not be subject to takings scrutiny so long as it did “no more than duplicate the result
that could have been achieved in the courts—by adjacent
29
landowners (or other uniquely affected persons) under
the State’s law of private nuisance, or by the State under its complementary power to abate nuisances that
affect the public generally.” 505 U.S. at 1029. But nuisance does not exhaust the universe of background limitations relevant to a takings analysis. The Lucas Court
noted, for example, that the government may be absolved “of liability for the destruction of ‘real and personal property, in cases of actual necessity, to prevent
the spreading of a fire’ or to forestall other grave
threats to the lives and property of others.” Id. at 1029
n.16 (citation omitted).
As relevant here, the common law also recognized
various privileges to access private property in certain
situations. A classic example was the privilege to enter
private property to engage in various law-enforcement
activities, like effectuating an arrest or preventing serious crime. See, e.g., Restatement §§ 204-205. In the
same vein, both this Court and the lower courts have
long recognized that all property is held subject to
certain core exercises of the police power, like lawenforcement searches and health and safety inspections—though other constitutional constraints, like the
Fourth Amendment, may apply. See, e.g., Bennis v.
Michigan, 516 U.S. 442, 452 (1996) (holding, in a forfeiture case, that “[t]he government may not be required
to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain”); Lech v. Jackson, 791 Fed. Appx. 711, 715-719
(10th Cir. 2019), cert. denied, 141 S. Ct. 160 (2020); cf.
Hurtado v. United States, 410 U.S. 578, 588-589 (1973)
(reasoning that the government need not “pay for the
performance of a public duty it is already owed,” and
30
that “there is in fact a public obligation to provide evidence”). A permanent codification of such background
principles would not effect a taking.
The access regulation, however, does not embody
any of the traditional background limitations on property rights. It does not authorize access to abate a nuisance, prevent imminent harm to life or property, or engage in law-enforcement activities. Nor have respondents identified any other background principle that
could support the access regulation. At most, California
courts have suggested that “[a] duty or authority imposed or created by legislative enactment carries with
it the privilege to enter land in the possession of another
for the purpose of performing or exercising such duty
or authority in so far as the entry is reasonably necessary to such performance or exercise.” Property Reserve, Inc. v. Superior Court, 375 P.3d 887, 909 n.15
(Cal. 2016) (quoting Restatement § 211). But not all
pre-existing state-law limitations on property rights
qualify as the kind of deeply rooted background principles described in Lucas and Palazzolo. And even if the
privilege described in Property Reserve qualifies, it is
inapplicable in this case by its terms.
As the California courts have long recognized, the access regulation—in contrast to the NLRA access
right—applies in cases where “access might in fact have
been unnecessary.” Pandol & Sons, 546 P.2d at 699
(emphasis added). That overbreadth is illustrated by
this as-applied challenge, where it is undisputed that
none of petitioners’ employees lives on site—the typical
circumstance where access to the employer’s property
is necessary for organizing. See Pet. App. G9, G11; cf.
Lechmere, 502 U.S. at 533-534 (explaining that the
NLRA access right applies only where “the location of
31
a plant and the living quarters of the employees place
the employees beyond the reach of reasonable union efforts to communicate with them”) (citation omitted).
3. The government may also require private parties
to cede property rights as a condition of using their
property in certain ways. In Nollan itself, after determining that if California had simply required the Nollans to permanently make their beachfront available to
the public, it would have been an uncompensated taking,
the Court went on to consider whether that request was
permissible as a condition of a building permit. 483
U.S. 834. The Court recognized that the State could
theoretically deny the permit outright to advance the
public interest (such as the interest in preventing beach
congestion) without effecting a taking under Penn Central. Id. at 835-836. And it held “that a permit condition
that serves the same legitimate police-power purpose as
a refusal to issue the permit should not be found to be a
taking if the refusal to issue the permit would not constitute a taking.” Id. at 836. The Court subsequently
clarified that to avoid a taking, the permit condition
must bear an “essential nexus” and “rough proportionality” to the impact of the proposed use of the property.
Dolan v. City of Tigard, 512 U.S. 374, 386, 391 (1994)
(citation omitted).
The Court adopted a similar, but distinct, conditions
doctrine in Ruckelshaus v. Monsanto Co., 467 U.S. 986
(1984). That case involved a federal statute regulating
insecticides and permitting the government to disclose
certain trade secrets submitted by the manufacturer as
a condition of registering an insecticide to sell domestically. Id. at 994-995, 1006. In rejecting a takings challenge to that regime, the Monsanto Court reasoned that
32
the manufacturer voluntarily “chose to submit the requisite data” in exchange for “a valuable Government
benefit.” Id. at 1006-1007. Notably, Monsanto required
a looser fit between the regulation and the potential
harms caused by the regulated activity than did Nollan.
See id. at 1007 (holding that registration “conditions”
must be “rationally related to a legitimate Government
interest”). As this Court later explained, the government enjoys greater leeway to set the conditions on operating in certain potentially dangerous, highly regulated industries, than it does to impose conditions on
“basic and familiar uses of property.” Horne v. Department of Agric., 576 U.S. 351, 365-366 (2015) (selling raisins) (citation omitted); see Nollan, 483 U.S. at 833 n.2
(building a house); Loretto, 458 U.S. at 439 n.17 (acting
as a landlord).
Neither Monsanto nor Nollan sustains the access
regulation. The access regulation is not imposed as a
condition on a governmental benefit that might trigger
the relaxed germaneness requirements under Monsanto. In contrast to certain potentially dangerous activities on land, the right to employ agricultural workers on one’s own property, “although certainly subject
to reasonable government regulation,” is not a “special
governmental benefit” that the government may offer
only upon “the waiver of constitutional protection.”
Horne, 576 U.S. at 366; see Nollan, 483 U.S. at 833 n.2
(similar). The Court’s holding in Loretto that “a landlord’s ability to rent his property may not be conditioned on his forfeiting the right to compensation for a
physical occupation,” 458 U.S. at 439 n.17, applies with
equal force here.
33
Nollan is similarly unavailing. The predicate for
Nollan is absent here, as respondents have not suggested that, in the absence of the access regulation, they
would categorically bar a landowner from engaging
workers in commercial agriculture because its employees might not receive information pertaining to labor
organizing through the usual non-trespassory means.
And it is highly questionable whether they even could
impose such a categorical bar without effecting a taking
pursuant to Penn Central. Moreover, in contrast to the
limited NLRA access right, California’s access regulation does not represent a proportionate response to the
risk that petitioners’ employees may not receive information pertaining to labor organizing, given that those
employees are accessible to labor organizers off-site.
See p. 5, supra.
CONCLUSION
The judgment of the court of appeals should be reversed.
Respectfully submitted.
JEFFREY B. WALL
Acting Solicitor General
HASHIM M. MOOPPAN
Counselor to the
Solicitor General
JONATHAN D. BRIGHTBILL
ERIC GRANT
Deputy Assistant Attorneys
General
JONATHAN Y. ELLIS
AUSTIN L. RAYNOR
Assistants to the Solicitor
General
JANUARY 2021
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