141 S. Ct. 2063 (2021)
The California Agricultural Labor Relations Board promulgated a regulation under the Agricultural Labor Relations Act of 1975 that grants labor organizations the right to take access to an agricultural employer's property.1 Under the regulation, a labor organization may take access for up to four 30-day periods in a calendar year.2 Two organizers per work crew, plus one additional for every fifteen workers over thirty, may enter the employer's property for up to one hour before work, one hour during lunch, and one hour after work.3
Cedar Point Nursery is a strawberry grower in northern California, and Fowler Packing Company is a grower and shipper in Fresno.4 In 2015, organizers from the United Farm Workers entered Cedar Point's property without notice, using bullhorns and disturbing operations.5 Organizers attempted to take access at Fowler Packing Company but were blocked, after which the union filed and then withdrew an unfair labor practice charge.6
Anticipating future entries, Cedar Point Nursery and Fowler Packing Company sued members of the Agricultural Labor Relations Board in federal district court.7 The growers sought declaratory and injunctive relief.8 The complaint alleged that the access regulation appropriated without compensation an easement for union organizers to enter their property.9
The District Court denied the growers' motion for a preliminary injunction and dismissed the complaint.10 A divided panel of the Court of Appeals for the Ninth Circuit affirmed, and rehearing en banc was denied over dissent.11 The Supreme Court granted certiorari.12
Whether California's access regulation constitutes a per se physical taking under the Takings Clause of the Fifth Amendment as applied to the States through the Fourteenth Amendment?13
When the government physically acquires private property for a public use, the Takings Clause obligates the government to provide the owner with just compensation. The Court applies a per se rule to physical appropriations of property, requiring the government to pay for what it takes, whereas regulations that merely restrict an owner's use of property are generally assessed under the multifactor balancing test of Penn Central Transportation Co. v. New York City.14
Yes. The regulation promulgated by the California Agricultural Labor Relations Board grants union organizers a right to physically enter and occupy the property of Cedar Point Nursery and Fowler Packing Company for substantial periods each year. This action appropriates the growers' fundamental right to exclude others from their land, as demonstrated by the actual entries at Cedar Point in 2015 and the attempts at Fowler. Because the government has authorized a physical invasion of private property through this regulation, the per se takings rule applies rather than Penn Central balancing, and the growers are entitled to just compensation for the taking of their property interest.15
The access regulation constitutes a per se physical taking under the Takings Clause.16
Related opinions on this issue
Justice Kavanaugh joined the Court's opinion but wrote separately to explain that the precedent in NLRB v. Babcock & Wilcox Co. also supports the decision.17 In that case, the Court interpreted the National Labor Relations Act to permit union organizer access only when necessary because employees live on company property.18 Babcock thus recognized employers' basic Fifth Amendment right to exclude from private property, subject to a narrow necessity exception.19
The California access regulation intrudes on property rights far more than Babcock would allow.20 A dissenting justice in the 1976 California Supreme Court case had concluded that the regulation violated Babcock and constitutional protections.21 Kavanaugh agreed with that view and joined the opinion in full.22
Joined by Justices Sotomayor And Kagan
Justice Breyer, joined by Justices Sotomayor and Kagan, dissented from the majority's holding.23 He argued that the regulation should be characterized as a regulation rather than a physical appropriation because it grants only temporary and limited access.24 The regulation does not convey a traditional property estate or formal easement.25
Under the Court's cases, permanent occupations are per se takings, but temporary invasions require Penn Central balancing to determine if the regulation goes too far.26 The majority's approach would threaten many ordinary regulatory schemes involving temporary access for workplace inspections, food and drug inspections, environmental surveys, and licensing compliance visits.27 Treating such regulations as per se takings would create uncertainty and replace the workable Penn Central approach with indeterminate exceptions.28
Breyer would adhere to the established approach and evaluate the access regulation under Penn Central's fact-specific balancing.29