By Wayne D. Garris Jr., J.D.
The employers filed suit against the board after union organizers attempted to enter the employer’s premises without permission.
The Ninth Circuit denied a petition for panel rehearing, and denied a petition for rehearing en banc, from its prior opinion affirming the dismissal of a complaint by two produce growers against members of the California Agricultural Labor Relations Board (ALRB) challenging a regulation that allows union organizers access to employers’ work sites to meet with agricultural employees. In an opinion dissenting from the denial of en banc rehearing, Judge Ikuta argued that the “access regulation” appropriated an easement in gross to the union and constituted a taking of real property without just compensation and that the majority failed to properly characterize the employers’ property rights (Cedar Point Nursery v. Shiroma, April 29, 2020, per curiam).
Access Regulation. The ALRB promulgated an emergency regulation that allowed union organizers access to employees on their employer’s property under limited circumstances. The ALRB determined that adopting a universally applicable rule for access—as opposed to a case-by-case adjudications or the “adoption of an overly general rule”—would best serve the “legislatively declared purpose of bringing certainty and a sense of fair play to a presently unstable and potentially volatile condition in the agricultural fields of California.” This right of access is not unlimited. Rather, the regulation imposes a number of restrictions on access relating to time, place, number of organizers, purpose, and conduct.
Case history. The plaintiffs are agricultural growers in California. After union organizers came onto their property to access workers, the employers filed a complaint for declaratory and injunctive relief under 42 U.S.C. § 1983 against members of the ALRB. They alleged that the access regulation, as applied to them, was unconstitutional in that it amounts to a per se taking in violation of the Fifth Amendment because it was a permanent physical invasion of their property without just compensation, and that the regulation effects an unlawful seizure of their property in violation of the Fourth Amendment. A district court denied the growers’ motion for injunctive relief as to both the Fifth and Fourth Amendment claims and granted the ALRB’s motion to dismiss.
On appeal, the Ninth Circuit affirmed the dismissal, finding that the growers did not suffer “a permanent physical invasion” that would constitute a per se taking because the sole property right affected by the regulation is the right to exclude.
The employers petitioned for a rehearing en banc, which the court denied.
Dissent. In an opinion dissenting from the denial of rehearing en banc, Judge Ikuta argued that the majority’s opinion endorsed “the taking of property without just compensation.” Further, the court should have taken the case en banc because the majority’s focus on the lack of “a personal physical invasion” was in opposition to established U.S. Supreme Court precedent and “misunderstood the nature of the property rights at issue” and how the access regulation constituted a taking of these rights.
Takings clause. Under long established Takings Clause principles, the judge argued, property rights are determined by reference to state law, which here is California. California law recognizes that easements are a traditional form of private property. According to the dissent, the access regulation appropriates easements in gross from property owners and transfers them to union organizers. This appropriation constitutes a taking of private property and requires just compensation.
Supreme Court precedent. The dissent cited several Supreme Court decisions to support its assertion that an easement in gross is a form of private property that cannot be taken without just compensation. For example, In Portsmouth Harbor Land & Hotel Co. v. United States, the Supreme Court held that a landowner was entitled to compensation after the federal government set up “heavy coast defence guns” on the plaintiff’s land. In Kaiser Aetna v. United States, the court held that a taking of private property occurred when the government tried to compel a marina owner to open its lagoon to the public.
Errors. The dissent also argued that the majority made several errors in its analysis that led to its decision. First, the majority ignored the employers’ claim that the state appropriated its property and mischaracterized it as a claim that “regulatory activity has gone too far by causing a permanent occupation of their land.” Then the majority held that the claim must allege one of three types of regulatory taking: (1) “where government requires an owner to suffer a permanent physical invasion of her property—however minor,” (2) where regulations “completely deprive an owner of ‘all economically beneficial us[e]’ of her property,” or (3) “the remainder of regulatory actions, which are governed by the standards set forth in Penn Central Transportation Co. v. New York City.” The dissent argued that this mischaracterization of the employers’ claim was wrong, and that the employers alleged a “classic” takings claim—government appropriation of private property.
Permanent and continuous. According to the dissent, the majority also erred by concluding that the access regulation does not constitute a taking because it did not grant union organizer a “permanent and continuous” right to come on the employers’ properties. Judge Ituka argued that there is no authority to support the proposition that the government can appropriate an easement, without compensation, as long as the easement is not continuous. Nor does an easement have to be permanent in order to constitute a taking.
Additionally, the majority’s decision created a circuit split with the Federal Circuit’s decision in Hendler v. United States, in which that court held that the federal government’s intermittent intrusion on private property in order to install and maintain wells constituted a taking.
PruneYard Shopping Center. Lastly, the dissent asserted, the majority erred in relying on the Supreme Court’s decision in PruneYard Shopping Center v. Robbins. In PruneYard, the Supreme Court affirmed the California Supreme Court’s decision that the state constitution protected speech and petitioning at a privately-owned shopping centers, and that the regulation did not constitute a taking. The majority reasoned that PruneYard involved a limitation on a property owner’s “right to exclude” individuals from property and the Supreme Court found that there was no taking. Thus, the access regulation, which limited the exclusion of union officials, was not a taking. The dissent argued that the majority’s reliance on PruneYard was misplaced because PruneYard involved a shopping center that was open to the public and the Supreme Court later clarified that PruneYard did not apply to government appropriation of an easement.
Concurrence. In a brief concurring opinion, Judge Paez responded directly to the dissent’s arguments that were not raised by the employers.
Supreme Court precedent. First, Judge Paez challenged the dissent’s assertion that Supreme Court precedent established that government appropriation of an easement constitutes a taking. In the cases cited by the dissent, the court held that it was not the intrusion upon private property that constituted the taking, but when the intrusion rendered the property “uninhabitable” or “deprived the owner of profitable use” of the property. That was not the case here.
Mischaracterization. Next, Judge Paez asserted that it was the dissent, not the majority, that mischaracterized the employers’ claim. In their appellate briefs, the employers alleged that the access regulation appropriated an easement, but they argued that the easement was a “permanent physical intrusion” which constituted a taking. The dissent’s articulation of the claim was different than the claim that the employers put forth in their brief.
No circuit split. Lastly, the concurrence rejected the argument that the majority created a circuit split with the Federal Circuit. In Hendler, even though the government entered the property intermittently, it constructed wells on the property that would remain there permanently. The presence of the wells caused a “complete taking” of the owner’s right to exclude. Here, there was no permanent structure and the Access Regulation set limitations on when union organizers could enter the property.
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