Nursery v. Hassid

141 S.Ct. 2063

210 L.Ed.2d 369

CEDAR POINT NURSERY, et al., Petitioners

v.Victoria HASSID, et al.

No. 20-107

Supreme Court of the United States.

Argued March 22, 2021

Decided June 23, 2021

Joshua P. Thompson, Sacramento, CA, for Petitioners.

Michael J. Mongan, Solicitor General, for Respondents.

Howard A. Sagaser, Ian B. Wieland, Sagaser, Watkins & Wieland PC, Fresno, CA, Joshua P. Thompson, Counsel of Record, Damien M. Schiff, Wencong Fa, Christopher M. Kieser, Pacific Legal Foundation, Sacramento, CA, for Petitioners.

Xavier Becerra, Michael J. Mongan, Solicitor General, Janill L. Richards, Principal Deputy, Solicitor General, Attorney General of California. Joshua Patashnik, Counsel of Record, Deputy Solicitor General, R. Matthew Wise, Deputy Attorney General, Amari L. Hammonds, Associate Deputy, Solicitor General, State of California, Department of Justice, San Francisco, CA, for Respondents.

Chief Justice ROBERTS delivered the opinion of the Court.

A California regulation grants labor organizations a "right to take access" to an agricultural employer's property in order to solicit support for unionization. Cal. Code Regs., tit. 8, § 20900(e)(1)(C) (2020). Agricultural employers must allow union organizers onto their property for up to three hours per day, 120 days per year. The question presented is whether the access regulation constitutes a per se physical taking under the Fifth and Fourteenth Amendments.

I

The California Agricultural Labor Relations Act of 1975 gives agricultural employees a right to self-organization and makes it an unfair labor practice for employers to interfere with that right. Cal. Lab. Code Ann. §§ 1152, 1153(a) (West 2020). The state Agricultural Labor Relations Board has promulgated a regulation providing, in its current form, that the self-organization rights of employees include "the right of access by union organizers to the premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support." Cal. Code Regs., tit. 8, § 20900(e). Under the regulation, a labor organization may "take access" to an agricultural employer's property for up to four 30-day periods in one calendar year. §§ 20900(e)(1)(A), (B). In order to take access, a labor organization must file a written notice with the Board and serve a copy on the employer. § 20900(e)(1)(B). Two organizers per work crew (plus one additional organizer for every 15 workers over 30 workers in a crew) may enter the employer's property for up to one hour before work, one hour during the lunch break, and one hour after work. §§ 20900(e)(3)(A)–(B), (4)(A). Organizers may not engage in disruptive conduct, but are otherwise free to meet and talk with employees as they wish. §§ 20900(e)(3)(A), (4)(C). Interference with organizers’ right of access may constitute an unfair labor practice, § 20900(e)(5)(C), which can result in sanctions against the employer, see, e.g. , Harry Carian Sales v. Agricultural Labor Relations Bd. , 39 Cal.3d 209, 231–232, 703 P.2d 27, 42, 216 Cal.Rptr. 688 (1985).

Cedar Point Nursery is a strawberry grower in northern California. It employs over 400 seasonal workers and around 100 full-time workers, none of whom live on the property. According to the complaint, in October 2015, at five o'clock one morning, members of the United Farm Workers entered Cedar Point's property without prior notice. The organizers moved to the nursery's trim shed, where hundreds of workers were preparing strawberry plants. Calling through bullhorns, the organizers disturbed operations, causing some workers to join the organizers in a protest and others to leave the worksite altogether. Cedar Point filed a charge against the union for taking access without giving notice. The union responded with a charge of its own, alleging that Cedar Point had committed an unfair labor practice.

Fowler Packing Company is a Fresno-based grower and shipper of table grapes and citrus. It has 1,800 to 2,500 employees in its field operations and around 500 in its packing facility. As with Cedar Point, none of Fowler's workers live on the premises. In July 2015, organizers from the United Farm Workers attempted to take access to Fowler's property, but the company blocked them from entering. The union filed an unfair labor practice charge against Fowler, which it later withdrew.

Believing that the union would likely attempt to enter their property again in the near future, the growers filed suit in Federal District Court against several Board members in their official capacity. The growers argued that the access regulation effected an unconstitutional per se physical taking under the Fifth and Fourteenth Amendments by appropriating without compensation an easement for union organizers to enter their property. They requested declaratory and injunctive relief prohibiting the Board from enforcing the regulation against them.

The District Court denied the growers’ motion for a preliminary injunction and granted the Board's motion to dismiss. The court rejected the growers’ argument that the access regulation constituted a per se physical taking, reasoning that it did not "allow the public to access their property in a permanent and continuous manner for whatever reason." Cedar Point Nursery v. Gould , 2016 WL 1559271, *5 (ED Cal., Apr. 18, 2016) (emphasis deleted). In the court's view, the regulation was instead subject to evaluation under the multifactor balancing test of Penn Central Transportation Co. v. New York City , 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), which the growers had made no attempt to satisfy. Cedar Point Nursery v. Gould , 2016 WL 3549408, *4 (ED Cal., June 29, 2016).

A divided panel of the Court of Appeals for the Ninth Circuit affirmed. The court identified three categories of regulatory actions in takings jurisprudence: regulations that impose permanent physical invasions, regulations that deprive an owner of all economically beneficial use of his property, and the remainder of regulatory actions. Cedar Point Nursery v. Shiroma , 923 F.3d 524, 530–531 (2019). On the court's understanding, while regulations in the first two categories constitute per se takings, those in the third must be evaluated under Penn Central . 923 F.3d at 531. The court agreed with the District Court that the access regulation did not fall into the first category because it did not "allow random members of the public to unpredictably traverse [the growers’] property 24 hours a day, 365 days a year." Id. , at 532. And given that the growers did not contend that the regulation deprived them of all economically beneficial use of their property, per se treatment was inappropriate. Id. , at 531, 534.

Judge Leavy dissented. He observed that this Court had never allowed labor organizers to enter an employer's property for substantial periods of time when its employees lived off premises. Id. , at 536 ; see Lechmere, Inc. v. NLRB , 502 U.S. 527, 540–541, 112 S.Ct. 841, 117 L.Ed.2d 79 (1992) ; NLRB v. Babcock & Wilcox Co. , 351 U.S. 105, 113, 76 S.Ct. 679, 100 L.Ed. 975 (1956). As he saw it, the regulation constituted a physical occupation and therefore effected a per se taking. 923 F.3d at 538.

The Ninth Circuit denied rehearing en banc. Judge Ikuta dissented, joined by seven other judges. She reasoned that the access regulation appropriated from the growers a traditional form of private property—an easement in gross—and transferred that property to union organizers. Cedar Point Nursery v. Shiroma , 956 F.3d 1162, 1168, 1171 (2020). The appropriation of such an easement, she concluded, constituted a per se physical taking under the precedents of this Court. Id. , at 1168.

We granted certiorari. 592 U. S. ––––, 141 S.Ct. 844, 208 L.Ed.2d 414 (2020).

II

A

The Takings Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, provides: "[N]or shall private property be taken for public use, without just compensation." The Founders recognized that the protection of private property is indispensable to the promotion of individual freedom. As John Adams tersely put it, "[p]roperty must be secured, or liberty cannot exist." Discourses on Davila, in 6 Works of John Adams 280 (C. Adams ed. 1851). This Court agrees, having noted that protection of property rights is "necessary to preserve freedom" and "empowers persons to shape and to plan their own destiny in a world where governments are always eager to do so for them." Murr v. Wisconsin , 582 U. S. ––––, ––––, 137 S.Ct. 1933, 1943, 198 L.Ed.2d 497 (2017).

When the government physically acquires private property for a public use, the Takings Clause imposes a clear and categorical obligation to provide the owner with just compensation. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency , 535 U.S. 302, 321, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002). The Court's physical takings jurisprudence is "as old as the Republic." Id. , at 322, 122 S.Ct. 1465. The government commits a physical taking when it uses its power of eminent domain to formally condemn property. See United States v. General Motors Corp. , 323 U.S. 373, 374–375, 65 S.Ct. 357, 89 L.Ed. 311 (1945) ; United States ex rel. TVA v. Powelson , 319 U.S. 266, 270–271, 63 S.Ct. 1047, 87 L.Ed. 1390 (1943). The same is true when the government physically takes possession of property without acquiring title to it. See United States v. Pewee Coal Co. , 341 U.S. 114, 115–117, 71 S.Ct. 670, 95 L.Ed. 809 (1951) (plurality opinion). And the government likewise effects a physical taking when it occupies property—say, by recurring flooding as a result of building a dam. See United States v. Cress , 243 U.S. 316, 327–328, 37 S.Ct. 380, 61 L.Ed. 746 (1917). These sorts of physical appropriations constitute the "clearest sort of taking," Palazzolo v. Rhode Island , 533 U.S. 606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001), and we assess them using a simple, per se rule: The government must pay for...