Farms to the Supreme Court: Regulators Need to Pay Up or Get Off Our Property

Argument Analysis

March 19, 2021

On Monday, the Supreme Court will hear a case brought by two farms in California. The farms are required by California law to permit union organizers onto their property for oversight purposes: interviewing workers and reviewing employment conditions at the facilities. 

The farms — who must make the property available to the union organizers for 120 days a year — have had enough. They claim the access requirement is a deprivation of their property, or a “taking” under the Constitution’s Takings Clause. Thus, the farms tell the Court, the government must pay for the right to access their property.

The farms lost in the lower court. The Ninth Circuit Court of Appeals ruled that the access requirement does not rise to the level of a Constitutional “taking,” so the government need not pay. The farms hope to fare better before the conservative-leaning Court this term.

Background: The Access Provision

In 1975, California passed a law providing labor protections for agricultural workers. The Agricultural Labor Relations Act allows the state to oversee conditions at farms. The law established an executive agency, the Agricultural Labor Relations Board, to enforce the law. 

The Board soon passed a regulation permitting union organizers to engage in oversight at agricultural facilities. The regulation granted union organizers access to farms “for the purpose of meeting and talking with employees and soliciting their support.”

After providing notice, the union organizers can access an agricultural employer’s property for four thirty-day periods in a calendar year. The property is available to them for three hours in a day: one hour before the start of work; one hour around the employees’ lunch; and one hour after work. 

The Takings Clause of the Fifth Amendment

The U.S. Constitution protects the right of a property owner to use her own property and to exclude others from it. The Fifth Amendment says that if the government “takes” your property, it must compensate you. That’s the Takings Clause:

[N]or shall private property be taken for public use, without just compensation.

For example, when the government wants to build a road right through your land, it can’t just take your property without paying. If the government needs to use some land on your property for public utility services, it must compensate you.

In 1922, the Supreme Court expanded the application of the Takings Clause into government regulation, in addition to when the government fully possesses your property. In Pennsylvania Coal Company v. Mahon, the Court ruled that the government could not ban Pennsylvania Coal from mining on its property because that would cheapen the value of the property to the point of constituting a government “taking.” The Court would expand the concept of a “regulatory taking” through the rest of the 20th century, to include things like zoning restrictions, historic preservation restrictions, and conditions on building permits.

In 1978, the Supreme Court outlined the modern framework for determining whether a governmental restriction of personal property (a regulatory taking) rises to the level of a Constitutional “taking.” In Penn Central Transportation v. New York City, the city prohibited Penn Central, which owned Grand Central Station, from constructing a high rise office tower atop the station because local law marked it a historic landmark. The Supreme Court ruled the regulation was not a physical taking after evaluating three factors which would set up the modern framework: (a) the economic impact of the regulation; (b) the extent of interference with distinct investment-backed expectations; and (c) the “character” of the government action.

This Lawsuit

Two farms with facilities in California sued the state of California, claiming that the law granting union organizers access to their farms is a constitutional “taking.” 

Plaintiff Cedar Point Nursery is a strawberry producer which has 100 full-time employees and 400 seasonal employees. The seasonal employees are not housed on farm property but in hotels across the border in Oregon. Fowler Packing Company, the other plaintiff, is a shipper of grapes and citrus. The company employs 1,800-2,500 in field operations and 500 people at its Freso facility. Like Cedar Point, Fowler employees do not live on company property.

The farms are not happy with union presence on their facilities. In Cedar Point’s case, the United Farm Workers union (UFW) stirred up a strike when it accessed the facility in October of 2015. According to the farm, the UFW did not provide notice as the access provision requires, and at 6am the union organizers “disrupted work by moving through the trim sheds with bullhorns, distracting and intimidating workers.” The incident precipitated this lawsuit. 

In the lawsuit, the farms ask the Court to rule that the access provision gives the government full physical possession of the property for 120 days each year, which activates the Takings Clause and means the government must provide just compensation. 

The Ninth Circuit Court of Appeals ruled against the farms, that the access provision does not grant the government full physical possession so it is not a “per se” taking (as opposed to a regulatory taking). 

The farms argued that the government occupation of their property is not actually temporary but instead permanent because there is no end in sight — no time identified in the future at which the farms will not be subject to occupation for those 120 days in the year. The appeals court was not persuaded and ruled instead that the occupation was time limited and subject to other restrictions. The access provision is not so intrusive as to cut off a great degree of the farms’ entire set of property rights, and thus it is not a taking.

The farms appealed to the U.S. Supreme Court.

The Farms’ Arguments

In the Supreme Court, the farms continue to argue that the access provision constitutes a “per se” taking of their property. A “per se” taking is a complete physical taking of the property, meaning the Court does not need to evaluate the factors for a regulatory taking set out in Penn Central.

The farms argue that the access provision is a “per se” taking because — for three hours each day, 120 days a year — the property owners are deprived of the right to exclude trespassers from their property. The farms argue that the right to exclude others is essential to property ownership, and without it, the owners do not hold their true ownership rights. Because the access provision is not time limited (it could go on indefinitely), the government occupation is permanent. Thus, the farms claim, what we have here is a permanent physical “per se” taking, and the state must provide just compensation.

The State’s Arguments

California defends the lower court ruling that the access provision is not a “per se” taking. According to the state, only a narrow set of regulatory takings constitute “per se” takings, and this situation is not one of them.

The state argues that this case should be analyzed under the Penn Central factors because it’s a regulatory taking. In this situation, the government is not taking the property for its own use: that’s a classic taking. When the Court started to consider that certain government regulations could cause a taking, it created a set of factors a court should consider and intentionally decided not to create a definitive rule. Those are the Penn Central factors. The Court already has set out the appropriate analysis for an access regulation, and the farms are seeking to transform the law entirely. 

The state argues that the farms’ argument would imperil the government’s potential to regulate in many realms of health and safety inspection, such as food and drug inspections, occupational health and safety inspections, and home visits by social workers. The state argues that the farms have not provided any way to distinguish between this situation and other core functions of government regulation which require government entry on private property. The proper framework, again, according to the state, is already in place: Penn Central.

More information:

For a history of Takings Law, read this Congressional Research Service report.

For a view of the potential “sweeping effects” of the case, read this Vox article.

Decision Analysis

On June 23, 2021 the Supreme Court ruled that California violated farm owners’ rights in requiring the farms to allow union organizers to enter farm property without providing “just compensation.”

The justices split on ideological lines as the conservative majority, in an opinion by Chief Justice Roberts, determined that the California law amounted to a “per se” physical taking, meaning the government must compensate the property owners for it.

The law at issue allowed union organizers to access farm property for three hours per day, 120 days in a year. Union organizers could talk to employees at the farms about their employment conditions and also recruit the employees for union activities. The law prohibited the organizers from disrupting operations at the farms.

The Takings Clause Question

The growers argued that California’s requirement to give union organizers access to their farms violated their constitutional rights under the Takings Clause. The Takings Clause of the Fifth Amendment (which applies to the states through the Fourteenth Amendment) says the government cannot take private property “for public use, without just compensation.”

In this case, the Court evaluated whether the California regulation constituted a “taking” deserving of “just compensation.” The Court ruled yes, it does. 

Supreme Court Decision

The majority opinion determined that the California regulation constitutes a “per se” physical taking, which is different and a more severe property intrusion than a regulatory taking. In a per se physical taking, the government “physically acquires private property for a public use,” while in a regulatory taking, the government “imposes regulations restricting an owner’s ability to use his own property.”

The Court determined the California union access regulation constituted a physical appropriation of the farms’ property, thus constituting a per se physical taking. It does not matter, the Court said, that the intrusion to private property is not “permanent and continuous.” The regulation at issue takes away the growers’ rights to exclude others from their property, meaning it gives others the right to invade, which constitutes a physical taking.

The majority was not concerned about its ruling affecting the government’s ability to regulate in other areas requiring physical access because, it said, isolated physical invasions are different than the “granted right of access” in this case. Further, the law still allows the government to require property owners to cede a right of access in exchange for a government benefit without having to provide compensation, like is the case in health and safety inspection regimes.

Breyer’s Dissent

Justice Breyer dissented in the case, arguing that the union access regulation is precisely a regulatory taking and not a per se physical taking. He considered the plain English meaning of the terms, regulatory versus physical appropriation to support his position. Of course this law is a regulation, he wrote, and not a physical appropriation. It grants no property rights; no interest in land; no physical appropriation. It does grant a limited-in-time right to access property for specific purposes. 

Breyer disagrees with the Court’s refusal to recognize the significance of the temporary nature of the government access in evaluating whether a taking is a per se physical taking. He said that of course if a taking is permanent, it more likely makes it an appropriation (citing Loretto v. Teleprompter (1982). If a taking is temporary, it is more like cases in which the Court has found a regulatory taking, like in PruneYard Shopping Center v. Robins (1980).

Lastly, Breyer disagrees with the majority opinion about this decision’s effect on the government’s ability to regulate in other areas. Temporary-entry regulations are necessary for the government to support the rights of individuals in our modern communities.