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 Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

♦

AMICUS CURIAE BRIEF OF

MOUNTAIN STATES LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

♦

Cristen Wohlgemuth

Counsel of Record

David C. McDonald

Mountain States Legal Foundation

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

cristen@mslegal.org

dmcdonald@mslegal.org

Counsel for Amicus Curiae

January 6, 2021

QUESTION PRESENTED

California law forces agricultural businesses to

allow labor organizers onto their property three times

a day for 120 days each year. The regulation provides

no mechanism for compensation. A divided panel

below held that, although the regulation takes an

uncompensated easement, it does not effect a per se

physical taking of private property because it does not

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

As an eight-judge dissent from denial of rehearing en

banc noted, the panel “decision not only contradicts

Supreme Court precedent but also causes a circuit

split.”

The question presented is whether the

uncompensated appropriation of an easement that is

limited in time effects a per se physical taking under

the Fifth Amendment.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ................................

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

IDENTITY AND INTEREST OF AMICUS

CURIAE..............................................................

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................

II.

UNDER BACKGROUND PRINCIPLES

OF PROPERTY LAW, UNION

ORGANIZERS HAVE NO RIGHT TO

ENTER PRIVATE PROPERTY ................

A PHYSICAL OCCUPATION OF ANY

PORTION OF GROWERS’

PROPERTIES VIOLATES GROWERS’

RIGHT TO EXCLUDE AND IS A

CATEGORICAL TAKING FOR

WHICH JUST COMPENSATION IS

OWED .......................................................

iii

III.

A PHYSICAL OCCUPATION OF ANY

DURATION VIOLATES GROWERS’

RIGHT TO EXCLUDE AND IS A

CATEGORICAL TAKING FOR

WHICH JUST COMPENSATION IS

OWED .......................................................

EXCLUSIVE OWNERSHIP IS

FUNDAMNETAL TO THE

DEFINITION OF PROPERTY

PROTECTED BY THE UNITED

STATES CONSTITUTION .....................

THIS ACTION ILLUSTRATES DEEP

CONCEPTUAL PROBLEMS IN THIS

COURT’S EXISTING PROPERTY

JURISPRUDENCE THAT MUST BE

ADDRESSED IN AN APPROPRIATE

CASE........................................................

CONCLUSION ...................................................

IV.

TABLE OF AUTHORITIES

Cases

Page

Alden v. Maine, 527 U.S. 706 (1999) .............

Andrus v. Glover Const. Co.,

446 U.S. 608 (1980) ........................................

Arkansas Game & Fish Comm’n v. United

States, 568 U.S. 23 (2012) .............................. passim

Arkansas Game & Fish Comm’n v. United

States, 736 F.3d 1364 (Fed. Cir. 2013) ..........

15, 16

Brandt v. United States,

710 F.3d 1369 (Fed. Cir. 2013) ......................

Brown v. Legal Found. of Washington,

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

10, 11

Chicago, B. & Q.R. Co. v. City of Chicago,

166 U.S. 226 (1897) ........................................

Continental Casualty Co. v. United States,

314 U.S. 527 (1942) ........................................

District of Columbia v. Heller,

554 U.S. 570 (2008) ........................................

Dolan v. City of Tigard,

512 U.S. 374 (1994) ........................................

Fletcher v. Peck,

10 U.S. (6 Cranch) 87 (1810) .........................

Hansen v. United States,

65 Fed. Cl. 76 (2005) ......................................

Head v. Amoskeag Mfg. Co.,

113 U.S. 9 (1885) ............................................

Hendler v. United States,

952 F.2d 1364 (Fed. Cir. 1991) ......................16, 17, 20

Horne v. Dep’t of Agric.,

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

Int’l News Serv. v. Associated Press,

248 U.S. 215 (1918) ........................................

Kaiser Aetna v. United States,

444 U.S. 164 (1979) ........................................ 9, 14, 15

Kelo v. City of New London,

545 U.S. 469 (2005) ........................................21, 24, 25

Klemic v. Dominion Transmission, Inc.,

138 F. Supp. 3d 673 (W.D. Va. 2015) ............

Klemic v. Dominion Transmission, Inc.,

No. 15-2338 (4th Cir. 2015) ...........................

Laguna Gatuna, Inc. v. United States,

50 Fed. Cl. 336 (2001) ....................................

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

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

5, 21

Loretto v. U.S. Teleprompter Manhattan

CATV Corp, 458 U.S. 419 (1982) ................... passim

Lucas v. South Carolina Coastal Council,

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

1, 5

Members of Peanut Quota Holders Ass’n v.

United States, 421 F.3d 1323 (Fed. Cir.

2005) ...............................................................

Mountain States Legal Foundation v.

Hodel, 799 F.2d 1423 (10th Cir. 1986) ..........

Nollan v. California Coastal Comm’n,

483 U.S. 825 (1987) ........................................11, 13, 17

Palmer v. Atlantic Coast Pipeline,

801 S.E.2d 414 (Va. 2017) ..............................

Penn Central Transp. Co. v. City of New

York, 438 U.S. 104 (1978) ..............................

Prop. Reserve, Inc. v. Superior Court,

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

5, 6

Tahoe-Sierra Pres. Council, Inc. v. Tahoe

Reg’l Planning Auth.,

535 U.S. 302 (2002) ........................................ 8, 11, 19

Wilson v. Interlake Steel Co.,

649 P.2d 922 (Cal. 1982) ................................

Yee v. City of Escondido, 503 U.S. 519

(1992) ..............................................................

Constitutional Provisions

U.S. CONST. Amend. V ...................................

Statutes

Cal. Lab. Code § 1152 ....................................

Rules

Supreme Court Rule 37.3(a) ..........................

Regulations

Cal. Code Regs. Tit. 8, § 20201–02 ................

vii

Cal. Code Regs. Tit. 8, § 20216 ......................

Cal. Code Regs. Tit. 8, § 20218–20 ................

Cal. Code Regs. Tit. 8, § 20279 ......................

Cal. Code Regs. Tit. 8, § 20900(e) .................. 2, 13, 16

Other Authorities

1 WILLIAM BLACKSTONE, COMMENTARIES

ON THE LAWS OF ENGLAND (1769) ...................

Grant Gilmore, Legal Realism: Its Cause

and Cure, 70 YALE L. J. 1037 (1961) .............

James Madison, Property, in 14 THE

PAPERS OF JAMES MADISON 266–68

(William T. Hutchinson et al., ed. 1983) .......

20, 22

Lawrence Berger, Public Use Requirement

in Eminent Domain, 57 OR. L. REV. 203

(1978) ..............................................................

Letter from Thomas Jefferson to Albert

Gallatin (Oct. 13, 1802), in 9 THE WORKS

OF THOMAS JEFFERSON 398, 399 (Paul

Leicester Ford ed. 1904–05)...........................

Restatement (Second) of Torts § 158 .............

RICHARD A. EPSTEIN, TAKINGS: PRIVATE

PROPERTY AND THE POWER OF EMINENT

DOMAIN (1985) ................................................

20, 23

viii

Richard A. Epstein, The Ebbs and Flows

in Takings Law: Reflections on the Lake

Tahoe Case, 2002 CATO SUP. CT. REV. 5

(2002) ..............................................................18, 19, 21

Thomas W. Merrill, Property and the Right

to Exclude, 77 NEB. L. REV. 730 (1998) .........18, 20, 23

William M. Treanor, The Original

Understanding of the Takings Clause and

the Political Process, 95 COLUM. L. REV.

782 (1995) .......................................................

IDENTITY AND INTEREST

OF AMICUS CURIAE 1

Mountain States Legal Foundation (“MSLF”) is a

nonprofit, public-interest legal foundation organized

under the laws of the state of Colorado. MSLF is

dedicated to bringing before the courts those issues

vital to the defense and preservation of individual

liberties, the right to own and use property, the free

enterprise system, and limited and ethical

government. Since its creation in 1977, MSLF

attorneys have defended individual liberties and been

active

litigation

regarding

the

proper

interpretation and application of the Takings Clause.

See, e.g., Brandt v. United States, 710 F.3d 1369 (Fed.

Cir. 2013) (represented Plaintiff); Horne v. Dep’t of

Agric., 576 U.S. 350 (2015) (as amicus curiae); Laguna

Gatuna, Inc. v. United States, 50 Fed. Cl. 336 (2001)

(represented Plaintiff); Dolan v. City of Tigard, 512

U.S. 374 (1994) (as amicus curiae); Lucas v. South

Carolina Coastal Council, 505 U.S. 1003 (1992) (as

amicus curiae); Mountain States Legal Foundation v.

Hodel, 799 F.2d 1423 (10th Cir. 1986) (en banc) (as

Plaintiff).

The right to own and use property includes, at its

core, the right to exclude others. Defense of the right

to exclude is central to MSLF’s mission. Indeed, if the

government may utilize a private business’s property

1 Pursuant to Supreme Court Rule 37.3(a), all parties provided

consent to the filing of this amicus curiae brief. No counsel for a

party authored this brief in whole or in part, and no person or

entity, other than MSLF, its members, or its counsel, made a

monetary contribution specifically for the preparation or

submission of this brief.

at any time without payment of just compensation—

or authorize third parties to do so—businesses, such

as those run by Cedar Point Nursery and Fowler

Packing Company (collectively, “Growers”), will be

thrown into disarray and will suffer significant

monetary and productivity losses. Therefore, MSLF

respectfully submits this amicus curiae brief, urging

the Court to reverse the Ninth Circuit’s judgment

below.

♦

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Agricultural Labor Relations Act provides

that “[e]mployees shall have the right to selforganization, 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. The

Agricultural Labor Relations Board enacted a

regulation under the Act, which provides that

employees have “the right of access by union

organizers to the premises of an agricultural employer

for the purposes of meeting and talking with

employees and soliciting their support . . . .” Cal. Code

Regs. Tit. 8, § 20900(e) (“Access Regulation”). In fact,

upon written notice, union organizers can enter the

property for three hours per day: An hour before work,

an hour after work, and an hour during lunch for up

to four 30-day periods each year. Id. Growers have

been subject to actual and attempted entries by union

organizers pursuant to the Access Regulation. On one

occasion, United Farm Workers organizers entered

Cedar Point Nursery’s property and accessed their

trim sheds, where hundreds of employees were

preparing strawberry plants during the busy harvest

season. Petition for Writ of Certiorari (“Pet. Br.”) at 7.

The union organizers disrupted the employees’ work

by moving through the trim sheds with bullhorns,

distracting and intimidating workers. Id.

Growers filed an as-applied challenge to the Access

Regulation against members of the Agricultural

Labor Relations Board (collectively, “Board”), arguing

that, inter alia, the Access Regulation effectuated a

taking of Growers’ property without just

compensation in violation of the Taking Clause of the

Fifth Amendment to the United States Constitution,

as applied to the states via the Fourteenth

Amendment. Id. at 8–9. The district court dismissed

the case, reasoning that the Access Regulation

permitted only a temporary physical occupation of

Growers’ property, and therefore no “categorical

taking[]” had occurred. Id. at 9. The Ninth Circuit

affirmed, over the spirited dissent of Judge Leavy, and

denied en banc review, again over spirited dissent,

this time from Judge Ikuta. Id. at 9–11.

The district court and Ninth Circuit erred in

permitting the physical invasion of Growers’ private

property without just compensation. The right to

exclude others is the sine qua non of property rights;

not some inconsequential element of the whole that

can be tossed aside without thought. Depriving

Growers of the right to exclude union organizers is,

standing alone, a taking, and the provision to union

organizers of an ongoing right of access, regardless of

the limited restrictions placed upon it by the Access

Regulation, demands just compensation. Further,

respect for the Constitution’s protection of private

property from government interference requires doing

away with certain shibboleths that have come to

engulf the Nation’s takings jurisprudence: namely the

“bundle of sticks” analogy for property and the

conflation of public use with public purpose.

♦

ARGUMENT

UNDER BACKGROUND PRINCIPLES OF

PROPERTY LAW, UNION ORGANIZERS

HAVE NO RIGHT TO ENTER PRIVATE

PROPERTY

The Ninth Circuit’s chief error in affirming the

district court’s dismissal of this case was the Circuit’s

failure to ground its analysis in longstanding

background principles of state property law. While the

district court did properly recognize that

governmental regulations and seizures of private

property are governed according to the longstanding

traditions of the state’s common law of property, it

ended its inquiry without determining whether the

Access Regulation deprived Growers of property

rights they previously had under California law. Pet.

App. C-11 n.6. Any law or decree that deprives a

property owner of a previously held right “cannot be

newly legislated or decreed (without compensation),

but must inhere in the title itself, in the restrictions

that background principles of the State’s law of

property and nuisance already place upon land

ownership.” Lucas v. South Carolina Coastal Council,

505 U.S. 1003, 1029 (1992).

Inherent in Growers’ private property rights is the

right to exclude others from entering their properties.

In fact, this Court has recognized that the right to

exclude is “perhaps the most fundamental of all

property interests.” Lingle v. Chevron U.S.A. Inc., 544

U.S. 528, 539 (2005).

Accordingly, state law may define property rights

to allow a right of access to property for certain

persons and purposes, but it must compensate the

property owner for the taking—a fact recognized

under California law. In Prop. Reserve, Inc. v.

Superior Court, 375 P.3d 887 (Cal. 2016), the

California Supreme Court reviewed a challenge to a

state law that granted the California Department of

Water Resources a right of access to private properties

in order to conduct environmental and geological

studies on land that the state, in the future, might

seek to acquire by negotiation or eminent domain for

a water project. Id. at 892. The statute provided for a

“precondemnation” proceeding, which required the

agency to obtain a court order prior to entering the

properties and deposit with the court an amount

sufficient to cover any damages that may result from

conducting such environmental and geological

studies. Id. at 924. The California Supreme Court

determined that the statute sufficiently provided just

compensation for any taking of property that occurred

because it not only required the agency to deposit with

the court an amount the court determined would be

the probable actual damages, but also permitted the

property owner to obtain compensation in the same

proceeding for any actual damages after-the-fact. Id.

at 893. In so holding, the court assumed that any

physical trespass onto private property by the state,

or authorized by the state, would constitute a taking.

Id.

In identifying the sorts of physical entry that may

constitute a taking, California courts have looked to

the Restatement (Second) of Torts, which provides

additional insight into how the common law defines

Growers’ property rights by explaining the exceptions

to liability for the tort of trespass. 2 See, e.g., Wilson v.

Interlake Steel Co., 649 P.2d 922, 925 (Cal. 1982)

(looking to the Restatement (Second) of Torts in

determining whether common law granted the agency

a license to enter onto private property); Prop. Reserve

Inc., 375 P.3d at 909 (same). The Restatement

prohibits third parties from trespassing onto private

property and provides only limited exceptions to a

landowner’s right to exclude. Restatement (Second) of

Torts § 158. Those exceptions allow third parties to

enter onto private property for certain traditionally

accepted purposes, such as abating a nuisance or

executing an arrest warrant. Id. §§ 202–07. None of

The Court of Federal Claims has aptly explained the

relationship between takings jurisprudence and tort law in

defining property rights:

[T]he common law of property relie[s] on tort principles,

particularly trespass and nuisance, to help define the

concept of property itself and the scope of property

interests. The development of takings law was, in effect,

an extension of the principles of trespass and nuisance to

the actions of the government.

Hansen v. United States, 65 Fed. Cl. 76, 96 (2005).

the Restatement’s common-law exceptions grant

union organizers a right to enter onto private property

for any purpose. Cf., Klemic v. Dominion

Transmission, Inc., 138 F. Supp. 3d 673, 688 (W.D. Va.

2015) (state law that merely codified existing

common-law right of natural gas company to enter

onto private property to service their gas line within

their easement was not a taking), appeal filed, No. 152338 (4th Cir. Oct. 30, 2015). 3 Indeed, the existence of

such limited common-law exceptions demonstrates

that Growers have the right to exclude in the first

place. See Andrus v. Glover Const. Co., 446 U.S. 608,

616–17

(1980)

("Where

Congress

explicitly

enumerates certain exceptions to a general

prohibition, additional exceptions are not to be

implied, in the absence of a contrary legislative

intent.") (citing Continental Casualty Co. v. United

States, 314 U.S. 527, 533 (1942)).

Thus, Growers continue to have the right to

exclude union organizers from their private property.

See Loretto v. U.S. Teleprompter Manhattan CATV

Corp, 458 U.S. 419, 433 (1982). Growers must,

therefore, be compensated when union organizers

exercise the right of access granted them by the Access

Regulation, regardless of the Access Regulation’s

provision of procedures for union organizers to follow

when accessing Growers’ properties. Compare Pet.

3 Appeal voluntarily dismissed after being held in abeyance

pending decision by the Virginia Supreme Court in Palmer v.

Atlantic Coast Pipeline, 801 S.E.2d 414 (Va. 2017), which

similarly found a common-law right for utility company

employees to enter private property to conduct survey work in

conjunction with lawful eminent domain proceedings.

App. A-17–A-18 (panel emphasizing that the Access

Regulation does not give union organizers “24 hours a

day, 365 days a year” access to Growers’ properties),

with Chicago, B. & Q.R. Co. v. City of Chicago, 166

U.S. 226, 236 (1897) (“The legislature may prescribe a

form of procedure to be observed in the taking of

private property for public use, but it is not due

process of law if provision be not made for

compensation.”). The Ninth Circuit erred in failing to

analyze how Growers’ property rights were defined by

state law prior to the Access Regulation and

specifically in failing to recognize the significant

violation of those property rights when the state

rescinded Growers’ right to exclude.

II.

A PHYSICAL OCCUPATION OF ANY

PORTION OF GROWERS’ PROPERTIES

VIOLATES

GROWERS’

RIGHT

EXCLUDE AND IS A CATEGORICAL

TAKING

FOR

WHICH

JUST

COMPENSATION IS OWED

The Takings Clause provides that “private

property [shall not] be taken for public use, without

just compensation.” U.S. CONST. Amend. V. This

Court has long differentiated between physical

takings and regulatory takings. Tahoe-Sierra Pres.

Council, Inc. v. Tahoe Reg’l Planning Auth., 535 U.S.

302, 321–22 (2002). “When the government physically

takes possession of an interest in property for some

public purpose, it has a categorical duty to compensate

the former owner, regardless of whether the interest

that is taken constitutes an entire parcel or merely a

part thereof . . . . even [if] that use is temporary.” Id.

at 322. In contrast, the Court’s regulatory takings

jurisprudence “is of more recent vintage and is

characterized by ‘essentially ad hoc, factual

inquiries.’” Id. (quoting Penn Central Transportation

Co. v. City of New York, 438 U.S. 104, 124 (1978)).

Only regulatory takings that deprive the landowner of

“all economically valuable use” are categorical, or “per

se” takings. Id. at 320–21. All physical takings,

however, are categorical takings. Id. at 321–22. In

Horne, the Court treated physical takings and

categorical takings as one and the same, emphasizing

that the lower courts should not “confuse our inquiry

concerning per se takings with our analysis for

regulatory takings.” Horne v. Dep’t of Agric., 576 U.S.

350, 364 (2015).

In Kaiser Aetna v. United States, this Court

unequivocally held 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.” 444 U.S. 164, 179–80 (1979).

Deprivation of the right to exclude can, standing

alone, constitute a taking. Loretto, 458 U.S. at 433;

Kaiser Aetna, 444 U.S. at 179–80. And while the

amount of just compensation due may vary depending

on “whether a part or a whole of that interest has been

appropriated by the government for the benefit of the

public,” Members of Peanut Quota Holders Ass’n v.

United States, 421 F.3d 1323, 1330 (Fed. Cir. 2005),

the Ninth Circuit here wrongly focused on Growers’

failure to allege a permanent physical invasion, Pet.

App. A-15–A-18. Additionally, this Court has “solidly

established” that physical takings need not be

“permanent” to be compensable. Arkansas Game &

Fish Comm’n v. United States, 568 U.S. 23, 32–37

(2012) (collecting cases).

Ignoring this Court’s precedent, the Ninth Circuit

panel assumed that, regardless of whether Growers’

right to exclude was taken, only permanent physical

occupations (and regulatory takings depriving the

property of all economically beneficial use) can qualify

as per se takings. Pet. App. A-14–A-15. That decision

cannot be squared with this Court’s takings

jurisprudence.

As demonstrated supra, there is a “settled

difference” in this Court’s takings jurisprudence

“between appropriation and regulation.” 4 Horne, 576

U.S. at 362. A physical occupation “is qualitatively

more severe than a regulation of the use of property,

even a regulation that imposes affirmative duties on

the owner, since the owner may have no control over

the timing, extent, or nature of the [physical]

invasion.” Loretto, 458 U.S. at 436 (emphasis in

original). There are straightforward differences

between regulatory and physical takings: Regulatory

takings limit a property owner’s use of private

property, whereas physical takings effectuate an

appropriation of private property. Horne, 576 U.S. at

363; see Yee v. City of Escondido, 503 U.S. 519, 528

(1992) (explaining that a categorical taking occurs

whenever the government authorizes a “physical

invasion” of private property, thus taking away the

4 It is “the text of the Fifth Amendment itself” that “provides a

basis for drawing a distinction between physical takings and

regulatory takings.” Brown v. Legal Found. of Washington, 538

U.S. 216, 233 (2003). Thus, this Court’s jurisprudence regarding

physical takings “is as old as the Republic and, for the most part,

involves the straightforward application of per se rules.” Id.

right to exclude). The Access Regulation falls under

the latter category.

In Loretto, this Court stated that a physical taking

is one which “require[s] the landlord to suffer the

physical occupation of a portion of his building by a

third party . . . .” 458 U.S. at 440. In Horne, the Court

explained that a regulation allowing the government

to take “possession and control” of property (in that

case, raisins subject to a marketing order) is a

physical taking, not a regulatory one. 5 576 U.S. at 362.

In Brown, the Court reiterated that “[w]hen the

government physically takes possession of an interest

in property for some public purpose, it has a

categorical duty to compensate the former owner,

regardless of whether the interest that is taken

constitutes an entire parcel or merely a part thereof.”

538 U.S. at 233 (internal citation omitted); 6 see Nollan

5 It is worth noting that, in Horne, this Court soundly rejected

the government’s argument that a categorical taking had not

occurred because the plaintiffs retained an interest in their

property. 576 U.S. at 362–64. It is similarly irrelevant here that

Growers were not completely dispossessed of their property.

Compare Pet. App. A-17–A-18 (Ninth Circuit panel emphasizing

the limits on union organizers’ access to Growers’ properties and

erroneously analogizing its decision that evisceration of the right

to exclude cannot alone constitute a taking with the regulatory

takings “parcel as a whole” doctrine), with Horne, 576 U.S. at 364

(emphasizing the difference between “[a] regulatory restriction

on use that does not entirely deprive an owner of property rights[,

which] may not be a taking under Penn Central” and “a physical

appropriation, [where] ‘we do not ask . . . whether it deprives the

owner of all economically valuable use’ of the item taken.”)

(quoting Tahoe-Sierra Pres. Council, Inc., 535 U.S. at 323).

6 Brown illustrated the difference between physical and

regulatory takings:

v. California Coastal Comm’n, 483 U.S. 825, 831

(1987) (“To 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.”). The Court’s bright-line rule that

physical invasions constitute a categorical taking

“avoids otherwise difficult line-drawing problems”

and respects both the letter and the spirit of the

Takings Clause. See Loretto, 458 U.S at 436

(“[C]onstitutional protection for the rights of private

property cannot be made to depend on the size of the

area permanently occupied.”).

The Access Regulation is not a mere regulatory

limit on Growers’ use of their property, such as a rule

requiring Growers to provide employees a certain

number of breaks in an eight-hour workday or

imposing safety measures on the use of equipment in

their packing facilities. A regulation authorizing

[C]ompensation is mandated when a leasehold is taken

and the government occupies the property for its own

purposes, even though that use is temporary. Similarly,

when the government appropriates part of a rooftop in

order to provide cable TV access for apartment tenants,

or when its planes use private airspace to approach a

government airport, it is required to pay for that share

no matter how small. But a government regulation that

merely prohibits landlords from evicting tenants

unwilling to pay a higher rent, that bans certain private

uses of a portion of an owner’s property, or that forbids

the private use of certain airspace, does not constitute a

taking.

538 U.S. at 233–34 (emphasis added) (citations omitted).

union organizers to enter Growers’ properties for up

to three hours per day, for four 30-day periods per

year, is fundamentally different than regulations that

limit the manner in which Growers may use their

property. The Access Regulation has far more in

common with the beach access easement taken in

Nollan than it does with, for example, the temporary

development moratoria at issue in Tahoe-Sierra. As in

Nollan, the Access Regulation simply cannot be

characterized as a “restriction on . . . use.” 483 U.S. at

831. It “require[s] [owners] to suffer the physical

occupation [of their properties],” Loretto, 458 U.S. at

440, and it is that “physical invasion” that places this

case in the categorical takings category. See Arkansas

Game & Fish Comm’n, 568 U.S. at 38.

Finally, the invasion sanctioned by the Access

Regulation was both intended and foreseeable.

Arkansas Game & Fish Comm’n, 568 U.S. at 39 (“Also

relevant to the takings inquiry is the degree to which

the invasion is intended or is the foreseeable result of

authorized government action.”). Indeed, the entire

purpose of the Access Regulation is to grant union

organizers access to private property that they did not

previously have. See Cal. Code Regs. Tit. 8, § 20900(e)

(declaring “the right of access by union organizers to

the premises of an agricultural employer for the

purpose of meeting and talking with employees and

soliciting their support”).

III.

A PHYSICAL OCCUPATION OF ANY

DURATION VIOLATES GROWERS’ RIGHT

TO EXCLUDE AND IS A CATEGORICAL

TAKING

FOR

WHICH

JUST

COMPENSATION IS OWED

The Ninth Circuit’s focus on whether the Access

Regulation grants union organizers “permanent”

access to Growers’ private properties is misguided.

Pet. App. A-15–A-18. The court’s confusion seemed to

stem from the inappropriate characterization of

physical takings as required to be permanent in

nature. Id. The panel started with the erroneous

premise that a physical taking of property does not

always constitute a categorical taking, and suggested

that, because the Access Regulation does not allow

union organizers to permanently move onto Growers’

property, no categorical taking occurred. Id.

(determining that anything short of a “permanent

physical occupation” must be analyzed under Penn

Central’s balancing test). This analysis conflicts

directly with this Court’s precedent.

Put simply, this Court’s decisions “confirm that

takings temporary in duration can be compensable.”

Arkansas Game & Fish Comm’n, 568 U.S. at 32–33

(“[W]e have rejected the argument that government

action must be permanent to qualify as a taking.”).

The general rule is not that Penn Central’s regulatory

takings analysis applies whenever a government

occupation is temporary. Rather, the rule is “if

government action would qualify as a taking when

permanently continued, temporary actions of the

same character may also qualify as a taking.” Id. at

515. In Kaiser Aetna, marina owners had formed a bay

by dredging a shallow lagoon and a connecting outlet

into contiguous navigable waters. 444 U.S. at 164. The

government claimed that the property owners were

required to open the lagoon to public use since it was

now subject to a “navigational servitude.” Id. at 179–

80. In rejecting that argument, this Court relied on

the fact that “the imposition of the navigational

servitude in this context will result in an actual

physical

invasion

the

privately

owned

marina . . . . And even if the Government physically

invades only an easement in property, it must

nonetheless pay just compensation.” Id. (citations

omitted). It was irrelevant that the public’s use would

be only intermittent; the most determinative fact was

the government’s contention that “the owner has

somehow lost one of the most essential sticks in the

bundle of rights that are commonly characterized as

property—the right to exclude others.” Id. at 176. The

government’s attempt to create a “right of access” to

the landowners’ private property went “so far beyond

ordinary regulation or improvement for navigation as

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

Similarly, in Arkansas Game & Fish Comm’n, this

Court considered whether temporary government

action in flooding plaintiffs’ property seasonally over

a six-year period constituted a categorical taking. Id.

at 517–18. In holding that the temporary flooding

could constitute a taking, the Court explained, “[w]e

do not read so much into the word ‘permanent . . . .’”

Id. at 520. On remand, the Federal Circuit determined

that the temporary flooding of plaintiffs’ property did

indeed constitute a taking, given that such flooding

was the foreseeable result of the government’s actions

and that the flooding “effected a wholesale change” in

the plaintiffs’ property rights. Arkansas Game & Fish

Comm’n v. United States, 736 F.3d 1364, 1372–75

(Fed. Cir. 2013).

Here, the Board created a right of access that did

not exist prior to the Access Regulation, depriving

Growers of the right to exclude union organizers for

up to three hours per day, for four 30-day periods per

year. Cal. Code Regs. Tit. 8, § 20900(e). This grant of

a right to union organizers effected a “wholesale

change” to Growers’ property rights. See Arkansas

Game & Fish Comm’n, 736 F.3d at 1374. The extent

of union organizers’ use of that right is immaterial

except to measure damages—it is the indefinite

deprivation of the right to exclude union organizers

that constitutes a taking of Growers’ property rights.

Hendler v. United States, 952 F.2d 1364, 1364 (Fed.

Cir. 1991), is instructive on this point. In that case,

landowners challenged the U.S. Environmental

Protection Agency’s (“EPA”) entry onto landowner’s

property to install groundwater wells and conduct

groundwater monitoring. Id. at 1374–75. Similar to

Growers here, there landowners faced penalties for

interfering with the EPA’s activities. Id. at 1374. The

EPA argued that its entries onto landowners’

properties were temporary in nature, and the district

court agreed that more evidence was needed to

determine the extent of the intrusion. Id. at 1375–76.

In reversing, the Federal Circuit explained that “[a]ll

takings are ‘temporary,’ in the sense that the

government can always change its mind at a later

time,” but “the concept of permanent physical

occupation does not require that in every instance the

occupation be exclusive, or continuous and

uninterrupted.” Id. at 1376, 1378. The government’s

use of the landowners’ property “for whatever

duration was necessary to conduct their activities”

and the risk of them returning at any time was simply

different in kind from a “common law trespass quare

clausum fregit” (such as a “truckdriver parking on

someone’s vacant land to eat lunch”). Id. at 1376–77.

Even if the Ninth Circuit was correct in focusing

on the duration of the invasion rather than the

physical nature of the encroachment, the Access

Regulation permanently grants union organizers

access to Growers’ properties—in essence, the

government is “behav[ing] as if it ha[s] acquired an

easement . . . .” Hendler, 952 F. 2d at 1378. The union

organizers may return multiple times per day, for up

to 30 days in a row; and may decide to return at any

time in the future. Indeed, if Growers exercise their

property rights to exclude union organizers, they can

face legal action. See Cal. Code Regs. Tit. 8, §§ 20201–

02, 20216, 20218–20, 20279. Such a deprivation of

Growers’ property rights is indistinguishable from the

easement granted to the public in Nollan. See 483 U.S.

at 831–32 (“We think a ‘permanent physical

occupation’ has occurred . . . 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.”) (emphasis added); see also Hendler, 952

F.2d at 1378 (where the government entered

plaintiffs’ land “at its convenience,” there was “little

doubt that such activity, even though temporally

intermittent, is not ‘temporary.’ It is a taking of the

plaintiffs’ right to exclude . . . .”). The Ninth Circuit

erred in finding the duration of the union organizers’

occupation of Growers’ property determinative, rather

than considering the ongoing and permanent

deprivation of Growers’ right to exclude effectuated by

the Access Regulation.

IV. EXCLUSIVE

OWNERSHIP

FUNDAMNETAL TO THE DEFINITION OF

PROPERTY PROTECTED BY THE UNITED

STATES CONSTITUTION

The Framers of the United States Constitution

recognized that a secure system of private property

rights was absolutely fundamental to a system of

ordered liberty in which the People govern

themselves. William M. Treanor, The Original

Understanding of the Takings Clause and the Political

Process, 95 COLUM. L. REV. 782, 821–22 (1995). The

Framers’ conception of private property rights,

informed by the English common law tradition,

included “the free use, enjoyment, and disposal of all

his acquisitions, without any control of diminution,

save only by the laws of the land.” 1 WILLIAM

BLACKSTONE, COMMENTARIES *134 (referring to

property as an “absolute” and “inherent” right). 7 The

Framers also “believed that physical possession of

property was particularly vulnerable to process

failure”—that is, that the political process would not

always adequately protect an individual’s private

property rights. Treanor, The Original Understanding

of the Takings Clause, 95 COLUM. L. REV. at 833–34.

Accordingly, the Framers included the Takings

7 Blackstone’s Commentaries were often cited as a resource by

the Framers and “constituted the preeminent authority on

English law for the founding generation . . . .” District of

Columbia v. Heller, 554 U.S. 570, 593–94 (2008) (quoting Alden

v. Maine, 527 U.S. 706, 715 (1999)).

Clause in the Fifth Amendment to safeguard against

such inevitable government abuses. Id. at 854–55;

Richard A. Epstein, The Ebbs and Flows in Takings

Law: Reflections on the Lake Tahoe Case, 2002 CATO

SUP. CT. REV. 5, 5 (2002) (“For the Framers of our

Constitution, the principles of good government

started with the protection of private property—that

guardian of all other rights.”).

Even as this Court’s regulatory takings

jurisprudence has evolved, the Court’s physical

takings jurisprudence has remained largely

unchanged. Compare Tahoe-Sierra Pres. Council, Inc.,

535 U.S. at 322 with Brown, 538 U.S. at 233. The

principle that even takings “temporary in duration”

are compensable was “solidly established in the World

War II era,” when the government took temporary

possession of many properties incident to wartime

necessity. See Arkansas Game and Fish Comm’n, 568

U.S. at 33 (collecting cases). Since then, the Court has

continued to zealously protect private property

owners against physical invasions of their property by

the government. See Horne, 576 U.S. at 362 (the

government’s physical taking of raisins was unlike a

regulatory limit on production of raisins because

“[t]he Constitution . . . is concerned with means as

well as ends,” and a physical invasion always

constitutes a per se taking). In our system of

constitutional governance, it has long been recognized

that “if the property of an individual, fairly and

honestly acquired, may be seized without

compensation[,]” then “[i]t may well be doubted

whether

the

nature

society

and

government . . . prescribe[s] [any] limits to the

legislative power.” Fletcher v. Peck, 10 U.S. (6 Cranch)

87, 135 (1810).

Exclusivity is the defining element that renders

property “private” in the first instance. See Int’l News

Serv. v. Associated Press, 248 U.S. 215, 250 (1918)

(Brandeis, J., dissenting) (“An essential element of

individual property is the legal right to exclude others

from enjoying it.”); RICHARD A. EPSTEIN, TAKINGS:

PRIVATE PROPERTY AND THE POWER OF EMINENT

DOMAIN 65 (1985) (“[T]he idea of property embraces

the absolute right to exclude.”); James Madison,

Property, in 14 THE PAPERS OF JAMES MADISON 266–

68 (William T. Hutchinson et al., ed. 1983) (“This term

in its particular application means ‘that dominion

which one man claims and exercises over the external

things of the world, in exclusion of every other

individual.’”). As the Federal Circuit succinctly stated

in Hendler:

The notion of exclusive ownership as a property

right is fundamental to our theory of social

organization. In addition to its central role in

protecting the individual’s right to be let alone,

the importance of exclusive ownership . . . is

now essential to economic development, and to

the avoidance of the wasting of resources found

under common property systems.

952 F.2d at 1375. There is no conception of private

property rights that allows the government to snatch

the right to exclude from the property owner’s bundle

of sticks with impunity. Without the right to exclude,

private property would not exist. Thomas W. Merrill,

Property and the Right to Exclude, 77 NEB. L. REV. 730

(1998) (Arguing that the right to exclude is not only

the “essential stick” in the bundle of rights that

comprise property, it is the “sine qua non” of

property.). That is why this Court has consistently

and repeatedly affirmed that a physical invasion of a

property owner’s right to exclude always constitutes a

categorical taking. Epstein, The Ebbs and Flows in

Takings Law, 2002 CATO SUP. CT. REV. at 6 (“[I]n all

cases of occupation, the courts have adhered to a wellnigh per se rule that requires compensation whenever

government occupies land, including some tiny

fraction of a larger holding.”). In holding otherwise,

the Ninth Circuit has set a dangerous precedent that

imperils the right to exclude—“perhaps the most

fundamental of all property interests.” Lingle, 544

U.S. at 539.

THIS ACTION ILLUSTRATES DEEP

CONCEPTUAL PROBLEMS IN THIS

COURT’S

EXISTING

PROPERTY

JURISPRUDENCE THAT MUST BE

ADDRESSED IN AN APPROPRIATE

CASE

The ease with which the lower courts in this case

dismissed Petitioners’ arguments speaks to a larger

problem within American property law, particularly

as applied to takings. While this Court has long

recognized the fundamental nature of the right to

exclude, see Lingle, 544 U.S. at 539 (referring to it as

“perhaps the most fundamental of all property

interests”), courts’ treatment of the right to exclude as

merely one of many sticks in the bundle of rights

making up property has allowed for the proliferation

of uncompensated takings such as the one currently

at issue. Similarly, the gradual enlargement of the

term “public use” that culminated in Kelo v. City of

New London (a decision approving the forced transfer

of land from low-to-middle class homeowners to a

multinational pharmaceutical company for a

development that was never built), has all but

declared legislatures free to declare any forced

transfer of property a legitimate taking for public use.

See generally, 545 U.S. 469 (2005). The present

controversy stems, in large part, from courts

repeating these two fundamental conceptual errors

that date back to the Progressive Era, when this Court

was far less concerned with the protection of private

property or the original public meaning of

constitutional text.

This case demonstrates how the “bundle of sticks”

metaphor for property has all but eviscerated the

right to exclude, which is the fundamental core from

which all other property rights emanate, to the extent

that union activists are permitted to trespass on

private property for the purpose of screaming

propaganda to a captive audience under the color of

state authority without any compensation to the

property owner.

As demonstrated above, see Part IV, infra,

exclusivity of ownership—the right to determine who

or what is allowed to enter and under which

conditions they remain—is absolutely central to the

conception of property protected by the Framers in the

Constitution. And while the Framers certainly had a

wider conception of property as well, see James

Madison, “Property,” at 266 (“In its larger and juster

meaning, [property] embraces every thing to which a

man may attach a value and have a right . . . .”), their

use of the term “property” generally tracked the

Blackstonian understanding of the term as referring

to the core, interconnected rights to “exclude, to use or

enjoy, and to transfer.” See Merrill, Property and the

Right to Exclude, 77 Neb. L. Rev. at 736 (citing

RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND

THE POWER OF EMINENT DOMAIN 58–59 (1985).

The “bundle of sticks” conception of property, in

contrast, has a much less storied pedigree. Having its

roots in the late-nineteenth century, see id. at 737

(referencing Henry Clay as an early proponent of a

more “nominalist” conception of property), the

metaphor first gained popularity among the Legal

Realists of the Twentieth Century, who rejected

“archaic” notions of natural rights or strict adherence

to constitutional text in favor of pragmatic balancing

of interests inspired by the burgeoning fields of social

science. See id. at 737–38. See also Grant Gilmore,

Legal Realism: Its Cause and Cure, 70 YALE L. J. 1037,

1037–39 (1961) (examining origins of Legal Realism

movement). The usefulness of the “bundle of sticks”

metaphor, to a devotee of Legal Realism, is that it

separates out each instrumentality or application of

the right to private property so that TwentiethCentury innovations in governance, such as

restrictive zoning and environmental regulations, can

be rationalized as only affecting a single stick in a

large bundle. These intrusions on the core of private

property rights can thus be re-contextualized from

unsanctioned invasions of the core of property

ownership triggering the public use and just

compensation components of the Fifth Amendment’s

Takings Clause to merely rearranging sticks in a large

bundle of rights, any one of which can be adjusted or

even removed entirely without significantly altering

the bundle as a whole. The metaphor is invoked, not

to protect property rights, but to excuse their

violation.

Much like the “bundle of sticks” metaphor, this

Court’s public use jurisprudence is an unfortunate

relic of the Progressive Era that has managed to

survive this Court’s return to a more originalist

jurisprudence generally. Amicus recognizes that the

question of whether forced union access qualifies as a

public use under the Takings Clause was not briefed

below and is not properly before this Court. It is

nonetheless troubling, however, that the current state

of the law is such that California’s assertion of public

use was not even challenged in this case, considering

the extraordinarily narrow and private union

interests benefiting from the invasion of Petitioners’

property, and urge this Court to consider revisiting its

public use jurisprudence in an appropriate case.

As Justice Thomas explained in his Kelo dissent,

“[t]he most natural reading of [the public use

requirement] is that it allows the government to take

property only if the government owns, or the public

has a legal right to use, the property, as opposed to

taking it for any public purpose or necessity

whatsoever.” 545 U.S. at 508 (Thomas, J., dissenting).

It is the “public use” requirement, not a “the state

legislature thinks a private transfer will have

beneficial knock-on effects” requirement. The labor

union desiring access to Growers’ properties in this

case is a private organization with private interests

(one might call them “special” interests in other

contexts). While the union’s activities may potentially

align in some respects with the public policy goals of

California’s state legislature, the labor union is

nevertheless primarily obligated to serve the private

interests of its members; not the public as a whole.

Unlike the water mills at issue in the Mill Acts

cases often cited by proponents of the more nebulous

“public purpose” or “public benefit” approach to

takings law, see Kelo, 545 U.S. at 479, n.8; Lawrence

Berger, Public Use Requirement in Eminent Domain,

57 OR. L. REV. 203, 208–12 (1978), the union here is

not engaged in a quasi-public exercise and makes no

representations as to direct public benefits from its

invasion of Growers’ properties. Cf. Head v. Amoskeag

Mfg. Co., 113 U.S. 9, 18–24 (1885) (discussing the

direct public benefit flowing from development of the

state’s water resources, common requirements that

such mills are made available to the surrounding

communities, and the rights and obligations of

property owners abutting common public resources).

There is no common law tradition of private

organizations distributing advertising materials to

potential members being considered a public good, let

alone a public use (with the possible exception of

certain forms of religious solicitation, which is far

outside the scope of this brief).

This case illustrates the dangers of allowing

“constitutional law” to replace independent analysis of

constitutional text. Pithy metaphors take on a life of

their own, growing far beyond their original

application or usefulness to eventually, as now,

obscure rather than elucidate. And small, pragmatic

compromises are built on top of prior small, pragmatic

compromises, building through iteration what would

have never been accepted if constructed all at once—

just as Thomas Jefferson warned. See Letter from

Thomas Jefferson to Albert Gallatin (Oct. 13, 1802), in

9 THE WORKS OF THOMAS JEFFERSON 398, 399 (Paul

Leicester Ford ed. 1904–05) (“The utility of the thing

has sanctioned the infraction. But if on that infraction

we build a 2d, on that 2d a 3d, &c., any one of the

powers in the Constitution may be made to

comprehend every power of government.”). While

there is merit to the impulse behind stare decisis—

consistency in the law is a normative value in and of

itself—this Court cannot continue to shackle itself to

ill-conceived precedents decided during times of

American history where fidelity to the written

constitution was much weaker than during the early

Republic or today.

♦

CONCLUSION

For the foregoing reasons, this Court should grant

the Petition.

DATED January 6, 2021

Respectfully submitted,

Cristen Wohlgemuth

Counsel of Record

David C. McDonald

Mountain States Legal Foundation

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

cristen@mslegal.org

dmcdonald@mslegal.org

Counsel for Amicus Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.