In this post -- the third in a series of deeper dives that we'll be posting about last week's U.S. Supreme Court opinion in Cedar Point Nursery v. Hassid, No. 20-107 (June 23, 2021) -- we'll be discussing whether the "right to exclude" is absolute, what exceptions the Court laid out, and how it responded to the arguments that the ruling will bring the system crashing down.
Here are all of the posts in our Cedar Point series:And in case you missed the live webcast on Friday, July 16, 2021 that featured expert analysis of the case, please don't miss listening to the recording of ALI-CLE's "Takings and Eminent Domain After Cedar Point: What Practitioners Need to Know."
- Part I: SCOTUS's Strawberry Letter 23 To Property Rights
- Part II: Common Sense (Keep Out) And Common Law (The Right To Exclude)
- Part III: No, Chicken Little, The Sky Isn't Falling
- Part IV: The Other Opinions
- Part V: Help Us Help You
- Part VI: What Others Are Saying
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Last we left it, we had finished up reviewing the majority opinion's emphasis on the fundamental-ness of the right to exclude, a revisit (finally!) to the Pruneyard case, and figured out what factors are not going to get the Court to apply Penn Central to a physical invasion (it's not permanence of the invasion or occupation, or the number or classification of people or things doing the invading, or whether the regulation or state law describes the required access as an "easement").
So does that mean the dissenters and commentators have a point when they claimed that the Court's ruling that all physical invasions are presumed to be categorical takings is going to result in dogs and cats living together ... mass hysteria and everyday things like your postal carrier dropping off mail at your house being deemed a taking?
Well no, and the majority addressed those concerns -- often raised in opposition to takings claims, see, e.g., Justice Brennan, dissenting in San Diego Gas & Elec., where he noted, "After all, a policeman must know the Constitution, then why not a planner? In any event, one may wonder as an empirical matter whether the threat of just compensation will greatly impede the efforts of planners." -- and laid out three general exceptions to the categorical presumption:
- some entries are takings, others are torts (slip op. at 17-18)
- some entries are not takings, as long as they are "consistent with longstanding background restrictions on property rights (Lucas) (slip op. at 18-19)
- some entries may be exacted by the government as a condition of government benefits (slip op. at 19-20)
Let's take a look at each of these in turn.
Takings vs. Torts
The majority dismissed minor intrusions, concluding that things like "[i]solated physical invasions, not undertaken pursuant to a granted right of access" should be analyzed under tort law, not as takings. One-time, casual, unofficial intrusions are not going to get you to the promised land of takings. The city's Public Works truck parking on your lawn one time isn't going to require just compensation. Okay, those kind of things are the easy cases when viewed as single events. But the more they occur, and the more severe the intrusion, you depart torty territory and head for takingsville. Slip op. at 17-18 (“[W]hile a single act may not be enough, a continuance of them in sufficient number and for a sufficient time may prove [the intent to take property]. Every successive trespass adds to the force of the evidence.”).
Thus, even though the Court did not apply a categorical takings approach to temporary government-caused flooding in Arkansas Game, the Court still approached it as a taking, not a tort, and that distinction was the only question the Court addressed in that case. Cedar Point clarified that Arkansas Game's strict holding that "government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection" simply confirmed that "temporary" isn't an automatic get-out-of-jail-free card for a physical invasion, and expressly did not address the question whether temporary invasion takings are subject to categorical treatment.
In his fantastic law review article analyzing Arkansas Game, our colleague Brian Hodges presaged the analysis in Cedar Point, when he wrote that "[t]here is real danger that the Supreme Court’s overview in Arkansas Game & Fish Commission v. United States of various takings tests in which questions of duration may be relevant will be read as establishing a new, multi-factor test applicable to temporary physical takings." See Hodges, Will Arkansas Game & Fish Commission v. United States Provide a Permanent Fix for Temporary Takings?, 41 B.C. Envtl. Aff. L. Rev. 365, 385 (2014). As Cedar Point now tells us, no Penn Central style approach.
One caution: the tort/takings distinction isn't as clear cut as the Cedar Point opinion makes out. For example, what about stuff like flooding where government action or inaction is the cause of all or part of the invasion? Should these cases be examined under a tort or takings lens? The lower courts are not settled on this issue, with some, like the Federal Circuit, the Fourth Circuit, and the Montana Supreme Court thinking these are just torts, where the issue is whether the damage to property was foreseeable and whether the sovereign has waived immunity, while others are not so limited in their approach and look at it as a self-executing claim for just compensation. But, the Cedar Point majority cautioned, you should instead look at causation, not foreseeability (an approach consistent with the takings lens some lower courts look at these situations through).
Prediction: the tort vs. taking sparring match is not yet over.
Background Principles
Next the Court noted that if an invasion of property is part and parcel of "longstanding background restrictions on property rights," there's no categorical taking. Slip op. at 18. What can we say about the Lucas exception, except that we think it is one of the most overbroad-as-applied concepts, and gets stretched way beyond the bounds intended by the Lucas case itself.
First, think nuisance prevention. Now that's a background principle of property law that the Court can wrap its head around. You can't make a noxious use of your property so there's no taking when a regulation merely codifies nuisance-prevention. Slip op. at 18. Second, think what the majority calls "privileges to access private property." Slip op. at 19. Things that fall under the umbrella of necessity (as lawprof Shelley Saxer recently wrote about). Think your letter carrier and constable, for example (unless they are blowing up your house, that is; in that case no problem at least to the Tenth Circuit).
The Cedar Point opinion's reference to background principles as a limitation on categorical takings must be read in light of the opinion's earlier references to the right to exclude as one of those "fundamental" rights that cannot be casually or easily tweaked by state legislatures and courts to shape state property law to avoid the Fifth and Fourteenth Amendment's compensation requirements. Cedar Point does suggest that a state's ability to redefine background principles to avoid takings has its limits on those sticks the court deems fundamental.
By "fundamental" (also referred to as "core") property rights, we're talking about aspects of property such as interest following principal, obtaining ownership of accretion, the ability to transfer property, and making reasonable use and development of land. And, of course, the right to exclude others. When these core rights are threatened, the Court has had little difficulty finding them to be fundamental property rights that transcend a state’s ability to redefine them by regulating them out of existence without just compensation.
Does Cedar Point's reemphasis of “background principles” continue to insulate state legislatures and courts from federal takings jeopardy when they try and bake in a background principle into a change in property law? We don't think so because Cedar Point rejected the argument that state law alone defines “property,” and with the stroke of a pen—whether by amending a state's positive law, or by changing a state's common law—can “manipulate” certain concepts inherent in the notion of the Court’s conception of what it means to own property. As we noted earlier, the Court noted that this conclusion is an “intuitive” one, the product of “common sense” as much as Blackstone. This reemphasized Justice Marshall’s concurring opinion in Pruneyard, which asserted that “serious constitutional questions” would result if the “legislature attempted to abolish certain categories of common-law rights in some general way,” and that “’core’ common-law rights, including rights against trespass,” cannot simply be abandoned.
Prediction: if that right/stick you claim was taken is one that looks like what the common folks think of when they think "property," you're going to do a lot better on the takings front.
Exacted Access
Finally, the Cedar Point opinion ventured into exactions territory:
Third, the government may require property owners to cede a right of access as a condition of receiving certain benefits, without causing a taking.
Slip op. at 19. This covers things like "health and safety inspection regimes." Id. So what you are saying, Court, is that even though the government can't straight-up require access to property without running afoul of the Takings Clause, it can adopt regimes where, in return for a permit, the government can ask the property owner to surrender the absolute right to exclude? Kind of. Like the background principles exception, we caution against reading this one too broadly.
First, the Court noted that this was for government "benefits." Exercising your fundamental or core property rights are not government "benefits," and thus the Nollan/Dolan/Koontz (your money or your life) unconstitutional conditions doctrines are a formidable bulwark against overactive leveraging of regulatory authority in those situations.
Take, for example, Kaiser Aetna, in which the Court rejected the government's argument that by breaking through the "existing barrier beach" and connecting the dredged Marina to the Pacific Ocean, the owner had thrown open the doors to the waterway and abandoned its right to exclude, much as the shopping center owner in Pruneyard had. As the Court put it:
The Government contends that as a result of one of these improvements, the pond’s connection to the navigable water in a manner approved by the Corps of Engineers, 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.
In follow-on dicta, the Court foreshadowed Nollan, when it noted that "[w]e have not the slightest doubt that the Government could have refused to allow such dredging on the ground that it would have impaired navigation in the bay, or could have conditioned its approval of the dredging on petitioners’ agreement to comply with various measures that it deemed appropriate for the promotion of navigation." But critically, the Court also noted that the right to exclude was not one of those things that an owner can be asked to surrender, at least without compensation:
[W]what petitioners now have is a body of water that was private property under Hawaiian law, linked to navigable water by a channel dredged by them with the consent of the Government. While the consent of individual officials representing the United States cannot “estop” the United States, it can lead to the fruition of a number of expectancies embodied in the concept of “property”—expectancies that, if sufficiently important, the Government must condemn and pay for before it takes over the management of the landowner's property. In this case, we hold that the “right to exclude,” so universally held to be a fundamental element of the property right, falls within this category of interests that the Government cannot take without compensation.
Prediction: in spite of the Court saying in essence, "don't get too carried away with this exaction stuff, governments," we'll probably see a lot of lower court developments in this area.
Wrapping Up
So what to make of these "exceptions." Unlike some others, they don't seem to us to be ones where they will swallow up the main rule. The majority opinion ended by pooh-poohing the dissent's view of sky now set to fall:
None of these considerations undermine our determination that the access regulation here gives rise to a per se physical taking. Unlike a mere trespass, the regulation grants a formal entitlement to physically invade the growers’ land. Unlike a law enforcement search, no traditional background principle of property law requires the growers to admit union organizers onto their premises. And unlike standard health and safety inspections, the access regulation is not germane to any benefit provided to agricultural employers or any risk posed to the public. See Horne, 576 U. S., at 366 (“basic and familiar uses of property” are not a special benefit that “the Government may hold hostage, to be ransomed by the waiver of constitutional protection”). The access regulation amounts to simple appropriation of private property.
Slip op. at 20.
So, fellow dirt lawyers, put on your intuitive, common sense hats and strap in: get ready to try and figure out the nature of fundamental, core property rights. What it means to "own" something. That, in our view, is where the action is going to be.
Stay tuned for Part IV, where we'll examine the concurring opinion of Justice Kavanaugh, and the dissent authored by Justice Breyer.
Cedar Point Nursery v. Hassid, No. 20-107 (U.S. June 23, 2021)
