New SCOTUS Amicus: In Physical Invasion Takings, The Duration Of The Occupation Is Less Important Than Interference With The Right to Exclude (John Maynard Keynes Alert!)

Here's the amicus brief we filed last week in a case we've been following closely, Cedar Point Nursery v. Hassid, No. 10-104 (cert. petition filed July 29, 2020). 

That's the case in which a 2-1 Ninth Circuit panel affirmed the dismissal of a complaint for failure to plausibly state a takings claim under Twombly/Iqbal.  At issue was a regulation adopted by California's Agricultural Labor Relations Board which requires agricultural employees to open their land to labor union organizers. The regulation is framed as protecting the rights of ag employees to "access by union organizers to the premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support."

The panel majority viewed the complaint as alleging a Loretto physical invasion taking, and held the plaintiffs did not plausibly state a claim because they could not allege the invasion was permanent. The majority instead relied on PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), in which the Supreme Court concluded that the California Supreme Court had not effected a taking when it held that the California Constitution required shopping centers to be forums for public speech.

After a strong en banc petition, the full Ninth Circuit denied review, with with a large number of judges joining a dissental. As we wrote here ("Your Takings Cert Petition Checklist: Ninth Circuit, En Banc Denial, Concurral, Dissental, Circuit Split, PLF"), that boded well for a cert petition, which was soon filed. 

Our amicus brief (for Southeastern Legal Foundation) focused on three points. And in a nod to John Maynard Keynes, we ask whether anything is truly permanent. Rather than summarize the brief, here's the Summary of Argument:

This case presents the Court a clean vehicle to resolve a long-standing issue that has confounded the lower courts, and more importantly, which has over the decades since this Court decided Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1987), deprived countless owners of their right to compensation for physical invasions of their property merely because the incursion is not deemed “permanent” enough. How long must a property owner tolerate a physical invasion in order to be compensated under Loretto’s per se rule? The panel majority (joined by the judges concurring in the Ninth Circuit’s denial of en banc review) drew an unwarranted—but very bright—line, pointing out that the challenged California regulation does not permit union organizers to invade and occupy Petitioner’s property all the time. Thus, the court below concluded, no taking. This brief makes three points:

1. The Ninth Circuit’s rule focuses on the wrong thing—the duration of the invasion—and not the interference with the owner’s fundamental property right to exclude.
2. Eminent domain law has never limited compensation to “permanent” takings.
3. The Ninth Circuit’s conclusion is impractical because a rule based on the permanence of an invasion invites a pointless metaphysical search, when very little in this world truly is permanent.

The Court should grant review.

We are not alone on this one. No less than seven other amicus briefs have been filed in support, urging the Court to grant cert. We'll bring you more as the case unfolds, or you can follow along on the Court's e-docket here.

Brief of Amicus Curiae Southeastern Legal Foundation in Support of Petitioners, Cedar Point Nursery v. Hass...