By Kylie Horne.
A taking is when the government seizes private property for a public use. On July 26, 2021, the Supreme Court decided Cedar Point Nursery v. Hassid that addressed the question: Is there a Fifth Amendment “taking” when a state regulation allows union workers access to agricultural worksites for a few hours on certain days of the year?. The Supreme Court’s decision overturned decades of precedent, leaving the future of “takings” litigation full of new possibilities coupled with uncertainty from unanswered questions.
In 1975, California enacted the Agricultural Labor Relations Act (ALRA) which in turn led to the creation of the Agricultural Labor Relations Board (the “Board”). Shortly after its formation, the Board enacted a regulation that allowed union organizers access to agricultural worksites. Under the regulation, unions were allowed to be on private property three hours per day, 120 days per year.
Cedar Point Nursery in Dorris, California grows strawberries and employs around 500 workers. On October 19, 2015, organizers from United Farm Workers union (the “UFW”) entered the nursery under authorization from the state regulation. While at Cedar Point Nursery, the UFW allegedly encouraged some workers to stop what they were doing to join a protest at the nursery. Cedar Point filed a lawsuit against the Board alleging that the regulation granting access to their land violated the Fourth and Fifth Amendment. The district court dismissed the case for failure to state a claim. The Ninth Circuit on appeal found the California regulation did not violate either amendment and affirmed the lower court.
The Supreme Court granted certiorari to decide if the regulation granting unions access to the employer’s land constitutes a physical taking under the Fifth Amendment of the Constitution. The Fifth Amendment states, “private property [shall not] be taken for public use, without just compensation.” If the regulation was deemed a taking, the government could keep it in place, but would be required to compensate the owners of the land.
In oral arguments, Joshua Thompson, representing Cedar Point, argued that the regulation was clearly a taking because it denied businesses the right to exclude someone from their property. He advocated that the hour/day limitations of the regulation were only relevant to determine what compensation the businesses were owed, not to decide if the regulation was a taking to begin with. On the other side, the Solicitor General of California argued the regulation was not a taking. He argued the regulation was narrow and limited the number of people who could enter the property, when they could enter, and what they could do on the property.
Fifth Amendment “Takings” Now Include Physical Occupation
In a 6-3 decision, the Supreme Court ruled that the regulation was unconstitutional. Siding with Cedar Point, the court agreed the regulation violated the Fifth Amendment because it was a “taking” without just compensation from the government. The decision appears to overrule court precedent by holding that any physical occupation of a property, whether it is permanent or not, will be considered a “taking.” Chief Justice Roberts, writing for the majority, reasoned that by providing union organizers a right to physically enter the property, the owner’s right to exclude others from the property is taken away. The Court found, “the right to exclude is “one of the most treasured” rights of property ownership.”
The dissent, written by Justice Breyer, concluded the regulation was not a taking. He argued the regulation does not physically take the land, but temporarily regulates the right to exclude. The dissent argued that the regulation was not unconstitutional according to prior precedent. Justice Breyer voiced a concern that equating a physical occupation to a taking would be harmful for government safety inspections.
While this ruling seems exceptional considering court precedent, the court identified some caveats to the ruling. First, the court held that a regulation will not be considered a taking unless the property is accessed multiple times. Chief Justice Roberts in response to Justice Breyer’s concerns noted that the government is allowed to require inspections without them amounting to a taking. He wrote: ““[T]he government may require property owners to cede a right of access as a condition of receiving certain benefits, without causing a taking . . .. [g]overnment health and safety inspection regimes will generally not constitute takings.” Finally, the government will always be able to access private property in exceptional circumstances, such as a fire, without it being considered a taking.
While Cedar Point answered some questions, it also left many uncertainties. A large question the Court left unanswered is how one should calculate just compensation in this scenario. Justice Barrett in oral arguments suggested the union could pay as little as $50 for a site visit for the property owner to be justly compensated. However, the majority neglected to address this in their opinion, leaving it up to lower courts to apply a variety of approaches. The effects of this ruling are still unclear, but litigation will likely continue in order to determine unanswered questions.
The decision seems to be a victory for property-rights advocates, but a setback for unions. Unions typically rely on property access to ensure that safe working conditions are being upheld. However, this effect will likely not be felt as much in Arizona as in other states. According to the United States Bureau of Statistics, in 2019, union members accounted for 5.3% of employed wage and salary workers in Arizona, compared to 16.2% of employed workers in California. In Arizona, Cedar Point may give rise to challenges to OSHA’s requirement that employers give the government and an employee representative (often from a union) access to their premises. Whether this Court’s ruling will affect Arizona is uncertain, but one thing is certainly clear: Cedar Point has opened the door to new possibilities, and it will be interesting to see where the ruling takes us.