For the past 45 years, California’s Agricultural Labor Relations Board (ALRB) has promulgated a regulation requiring producers of agricultural products to give union organizers access to their property. Access is limited to four 30-day periods per calendar year. Organizers can access the property one hour before start of work, one hour after end of work, and one hour over the lunch break. In 1976, the California Supreme Court held that the regulation did not constitute a taking of producers’ property.
The United States Supreme Court recently granted a petition for certiorari in a case challenging the ALRB’s regulation. In 2016, two producers sued the ALRB, primarily on the theory that the regulation established an easement over their property for the benefit of union organizers and hence constituted a per se physical taking, requiring compensation. The District Court dismissed the complaint and a divided panel of the Ninth Circuit affirmed. Over a strong dissent by eight judges, the Ninth Circuit denied rehearing en banc.
The growers argued that the regulation was a per se taking because it allowed a permanent physical invasion of their property. The panel opinion rejected that theory, because the alleged invasion was not “permanent and continuous.” Rather, it was limited to three hours a day for not more than 120 days per year. The opinion also held that the right to exclude others was merely one strand in the bundle of property rights.
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