Here's the property owners' Brief on the Merits in the case in which the U.S. Supreme Court is considering the nature of physical invasion takings, and how permanent a permanent intrusion must be in order to qualify for Loretto and Kaiser Aetna-ish per se treatment.
In Cedar Point Nursery v. Shiroma, 923 F.3d 524 (May 8, 2019), a 2-1 panel of the Ninth Circuit 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 Ninth Circuit panel majority viewed the complaint as alleging a Loretto physical invasion taking, but 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.
The issue: how "permanent" does a physical invasion have to be to qualify as a Loretto taking (or, more accurately here, how well does a complaint need to plead facts to show that the invasion qualified as a Loretto taking)? The Ninth Circuit panel majority and the en banc concurral pointed out that union organizers aren't allowed on the property all the time. The panel dissent and the en banc dissental pointed out that it shouldn't matter that the occupation by union organizers was not literally 24/7, merely that the property right allegedly taken was, you know, taken (government takes easements, permanent and temporary, all the time and pays for that privilege).
The heart of the owners' argument:
Petitioners’ proposed rule is simple—the government violates the Takings Clause when it appropriates an easement across private property for the benefit of third parties without compensation. The scope of the easement, including any time restrictions on access, is relevant only to the amount of compensation, not the determination that a taking has occurred. This rule is consistent with the Court’s precedent and limits the need for arbitrary linedrawing that would be required if only the appropriation of certain easements were considered per se takings. The rule also protects the fundamental right of property owners to exclude trespassers from their property. The right to exclude is too important to be left at the mercy of government officials who will inevitably seek as much public access as possible without paying for it. Property rights “cannot be so easily manipulated.” Horne, 576 U.S. at 365 (quoting Loretto, 458 U.S. at 439 n.17).
Br. at 16-17.
We've been following this case for a while, and we filed an amicus brief urging the Court to take up the case. In our view, this fetish of the amount of time that an occupation is permitted or anticipated should not be the controlling question. After all, nothing is truly "permanent" is it? The cables and box on Ms. Loretto's building could be removed, and the Arkansas flood waters receded. Army Air Corps B-25's were not occupying Causby's airspace day and night, forever. What the courts should be focusing on is whether the owner lost the right to exclude, no matter how long or short the resulting invasion lasted. Indeed, even if not a single union organizer ever enters the nursery property, it has the right to do so, and the owner doesn't have the right to keep them out.
Here's the Question Presented:
California law forces agricultural businesses to allow labor organizers onto their property three times a day for 120 days each year. The regulation provides no mechanism for compensation. A divided panel below held that, although the regulation takes an uncompensated easement, it does not effect a per se physical taking of private property because it does not allow “24 hours a day, 365 days a year” occupation. As an eight-judge dissent from denial of rehearing en banc noted, the panel “decision not only contradicts Supreme Court precedent but also causes a conflict split.”The question presented is whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment.
Check out the list of cert-stage amici (there are lots). We're guessing the same for the merits, so stay tuned.
Petitioners' Brief on the Merits, Cedar Point Nursery v. Hassid, No. 20-107 (Dec. 21, 2020)
