Thank You For Submiting Feedback!
The essential question under the Takings Clause is whether the government has physically taken property for itself or someone else, by whatever means, or has instead restricted a property owner’s ability to use his own property. Whenever a regulation results in a physical appropriation of property, a per se taking has occurred, and the Penn Central analysis has no place
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). The regulation mandates that agricultural employers allow union organizers onto their property for up to three hours per day, 120 days per year. Organizers from the United Farm Workers sought to take access to property owned by two California growers--Cedar Point Nursery and Fowler Packing Company. The growers filed suit in Federal District Court seeking to enjoin enforcement of the access regulation on the grounds that it appropriated without compensation an easement for union organizers to enter their property and therefore constituted an unconstitutional per se physical taking under the Fifth and Fourteenth Amendments. The District Court denied the growers' motion for a preliminary injunction and dismissed the complaint, holding that the access regulation did not constitute a per se physical taking because it did not allow the public to access the growers' property in a permanent and continuous manner. A divided panel of the Court of Appeals for the Ninth Circuit affirmed, and rehearing en banc was denied over dissent.
Did California's access regulation constitute a per se physical taking?
The court held that the California regulation granting 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), constituted a per se physical taking under the Fifth and Fourteenth Amendments because, under the regulation, the government had appropriated a right of access to the growers’ property, allowing union organizers to traverse it at will for three hours a day, 120 days a year.