On January 6, 2021, we blogged about two California farms’ challenges to California’s regulation requiring agricultural producers to grant unions access to their property to recruit workers. The regulation required access for three hours a day – one hour before work started, one hour at lunch and one hour after work – for a maximum of 120 days per year. The Ninth Circuit held that this regulation did not constitute a per se taking for purposes of the Fifth Amendment because it did not require access on a 24/7 basis.
In a 6-3 opinion on clear ideological lines, the Supreme Court reversed. The majority opinion held that the Court had recognized two kinds of takings: physical occupation of property, which is a per se taking, and regulatory takings, when the regulation goes “too far.”
The majority held that the California regulation was a per se taking because it appropriated the growers’ property for the benefit of the unions. The courts have long held that one of the most fundamental elements of the right of property is the right to exclude others, and the regulation deprives the owners of that right for up to 360 hours a year. It effectively forces the owners to grant an easement to the unions.
The majority held that the temporary nature of the easement was irrelevant. As a matter of common sense, it makes no sense to apply one set of rules to an easement available 365 days a year and another to an easement 364 days a year. As a matter of law, a number of prior Court cases had held that temporary invasions of private property were nonetheless a taking. For example, a 1946 case found that the government had taken plaintiff’s property by periodically flying aircraft over it less than 100 feet off the ground.
The majority also held that it made no difference that the regulation did not provide a common law easement as defined by California law. While state law is generally the source of property rights, it would be a wholesale elevation of form over substance to hold that the permanent, periodic access allowed by the regulation was not a taking.
As we predicted in our January 6 blog post, the majority went out of its way to emphasize that its holding would not impact ordinary health and safety inspections. The majority held that there is a clear difference between a trespass and a taking. It also held that there were various common law exceptions to the law of trespass, such a public official’s right to arrest or to engage in a reasonable search. And there is nothing wrong with conditioning a permit or license on the condition that the recipient allow reasonable health and safety inspections.
Justice Kavanaugh concurred. While the case did not involve labor unions, Justice Kavanaugh thought that the Court’s opinion in NLRB v. Babcock & Wilcox strongly supported the result. In Babcock & Wilcox, the Court held that Congress could authorize labor unions to enter on private property to organize workers only when the unions had no other reasonable means of communicating with the workers elsewhere. The day of the company town is over and there was no reason why union representatives could not contact workers at their place of residence.
The ruling does not mean that California cannot continue to require producers to allow limited union access to their premises. It only means that California must amend its statutes to authorize just compensation to the owner. The opinion does not address what compensation would be just or how it should be calculated.