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SR 01-26-2021 3C
City Council Report City Council Meeting: January 26, 2021 Agenda Item: 3.C 1 of 4 To: Mayor and City Council From: George Cardona, Interim City Attorney, City Attorney's Office, Municipal Law Subject: Recommendation to Join in Amicus Brief In Support of the State of California in Cedar Point Nursery, et al. v. Hassid, et al., United States Supreme Court, No. 20-107. Recommended Action Staff recommends that City Council authorize the City to sign on to an amicus brief to be filed by the Public Rights Project, the City of Seattle, Cook County, and Santa Clara County in support of the State of California’s position in Cedar Point Nursery, et al. v. Hassid, et al., United States Supreme Court, No. 20-107. Discussion Public Rights Project, along with the City of Seattle, Cook County, and Santa Clara County, and with pro bono assistance from Kaplan Hecker & Fink, is preparing an amicus brief in support of the State of California in a case currently pending before the U.S. Supreme Court. The petitioners in this case—a group of agricultural employers— challenge a 1975 California labor regulation that permits union organizers to enter agricultural workplaces to speak to farmworkers about working conditions and their rights. The respondents in the case include Victoria Hassid, the Chair of the California Agricultural Labor Relations Board, who is being represented by the California Attorney General. The California regulation at issue gives union organizers limited, time-bound access to agricultural worksites, provided that those organizers disclose to the employer that they intend to enter a particular worksite (see generally Cal. Code Regs. tit. 8, § 20900(e)(1)(A)). The petitioners filed suit claiming that, by authorizing ongoing entry to their property, the regulation creates an easement that constitutes a per se taking of their property without compensation in violation of the Fifth and Fourteenth Amendments to the United States Constitution and effects an unlawful seizure of their 3.C Packet Pg. 31 2 of 4 property in violation of the Fourth Amendment. The district court granted the respondent’s motion to dismiss, and the Ninth Circuit affirmed. The majority held that the access regulation did not violate either constitutional provision; the dissenting judge concluded that the regulation worked a per se taking. (Attachment A is the Ninth Circuit’s decision.) Petitioners filed a petition for rehearing en banc, which the Ninth Circuit denied. Eight judges, however, joined in a dissent from the denial. They would have held that the regulation at issue worked an uncompensated taking of an easement because it affords union organizers the ability to enter the land of another for the purpose of taking some action. The two judges who authored the Ninth Circuit’s majority decision concurred in the denial of rehearing to respond to the dissent of the eight judges. They noted in particular that the regulation being challenged does not authorize continuous access to petitioners’ property because only in specific circumstances may union organizers take advantage of the limited access the regulation affords them. (Attachment B is the dissent from the Ninth Circuit’s denial of rehearing together with the concurrence in that denial.) The petition for certiorari to the Supreme Court sought review only on the takings issue. The Court granted review on this issue. Petitioners argue in the Supreme Court, as they did in the Ninth Circuit, that the regulation implements a per se taking in violation of the Takings Clause of the Fifth Amendment. (Attachment C is the Petitioners’ Brief on the Merits.) A number of parties have filed amicus briefs in support of petitioners, including a coalition of agricultural associations, the American Farm Bureau Federation, the United States Chamber of Commerce, the Cato Institute, the Mountain States Legal Foundation, the New England Legal Foundation, the Liberty Justice Center, and a group of states consisting of Oklahoma, Alabama, Arizona, Arkansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, South Carolina, and Texas. The National Association of Counties, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, International Municipal Lawyers Association, and Government Officers Association have filed an amicus brief in 3.C Packet Pg. 32 3 of 4 support of neither party, explaining that they “do not support either party in this dispute because the proper disposition of the petition is to dismiss it as improvidently granted.” (Attachment D is the amicus brief filed by this group.) As their brief notes, however, the position taken by petitioners would potentially work a significant change in takings law, requiring governments to pay whenever they enter onto private land. Their brief discusses the potential consequences of such a change in takings law, noting: • The exercise by States and localities of their reserved police power to protect the safety of residents “often requires public officials to temporarily enter onto private land under circumstances never thought to give rise to takings liability, and certainly not automatically.” • “For example, countless statutes and regulations direct public officials to conduct periodic, often unannounced, inspections of residential and commercial properties to protect health and safety.” • “These public inspection regimes would collapse if the government had to pay landowners for every inspection.” • “Existing takings doctrine fully accommodates these routine exercises of police power, without absolving state or local governments of their duty to pay compensation in truly unusual cases where physical intrusions become occupations, or are otherwise so severe as to be indistinguishable from appropriations of property.” (internal quotation and citation omitted) The amicus brief to which the City would join would emphasize the importance of local regulations that protect the rights of residents and keep their communities safe, but in doing so require temporary physical entry onto private property. It would focus on two main arguments: (1) the creation of a per se Takings Clause claim for regulations of this type would create significant downstream impacts harming the ability of local governments to protect the rights of residents and keep their communities safe through such local regulations; and (2) the purpose of a regulatory regime such as the one at issue in this case is to support co-enforcement of workplace and consumer rights, which is crucial in sectors where workers or consumers are particularly vulnerable to 3.C Packet Pg. 33 4 of 4 exploitation, and meaningful contacts with those workers or consumers might not be possible without regulations permitting temporary physical entry onto private property. Given the potential significant change to takings law, and the potentially wide-ranging effects such a change would have on the City’s regulatory abilities, we recommend joining in the amicus brief. Prepared By: George Cardona, Interim City Attorney Approved Forwarded to Council Attachments: A. AttachmentA--Ninth Circuit decision B. AttachmentB--DenialofRehearing C. AttachmentC--PetitionersBrief D. AttachmentD--Counties-CitiesAmicus Brief 3.C Packet Pg. 34 Cedar Point Nursery v. Shiroma, 923 F.3d 524 (2019) 169 Lab.Cas. P 61,963, 19 Cal. Daily Op. Serv. 4221, 2019 Daily Journal D.A.R. 3857 © 2021 Thomson Reuters. No claim to original U.S. Government Works.1 923 F.3d 524 United States Court of Appeals, Ninth Circuit. CEDAR POINT NURSERY; Fowler Packing Company, Inc., Plaintiffs-Appellants, v. Genevieve SHIROMA; Cathryn Rivera-Hernandez; Santiago Avila-Gomez, Esquire; Isadore Hall III, Defendants-Appellees. No. 16-16321 | Argued and Submitted November 17, 2017 San Francisco, California | May 8, 2019 Synopsis Background: Employers brought action under § 1983 against California Agricultural Labor Relations Board, alleging that regulation under Agricultural Labor Relations Act (ALRA) that allowed union organizers access to agricultural employees at employer work-sites under specific circumstances amounted to per se taking in violation of Fifth Amendment and it effected unlawful seizure of their property in violation of Fourth Amendment. The United States District Court for the Eastern District of California, Lawrence J. O'Neill, Chief Judge, 2016 WL 3549408, dismissed the action. Employers appealed. Holdings: The Court of Appeals, Paez, Circuit Judge, held that: [1] regulation was not per se permanent physical taking in violation of Fifth Amendment, and [2] regulation did not effect Fourth Amendment seizure. Affirmed. Leavy, Circuit Judge, filed dissenting opinion. West Headnotes (11) [1]Eminent Domain Conditions precedent to action; ripeness Takings claims are not ripe in federal court until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue and the state has denied the plaintiff any opportunity for just compensation. U.S. Const. Amend. 5. [2]Federal Courts Dismissal or nonsuit in general A district court's order granting a motion to dismiss is reviewed de novo. Fed. R. Civ. P. 12(b) (6). [3]Federal Civil Procedure Matters considered in general In evaluating a motion to dismiss for failure to state a claim, review is limited to the complaint, materials incorporated into the complaint by reference, and matters of which the court may take judicial notice. Fed. R. Civ. P. 12(b)(6). 12 Cases that cite this headnote [4]Eminent Domain Labor and employment in general Regulation under Agricultural Labor Relations Act (ALRA) that allowed union organizers access to agricultural employees at employer work-sites for 360 hours per year, with 120 of those hours during workday, was not per se permanent physical taking in violation of Fifth Amendment, as applied to employers; although regulation did not have contemplated end- date, regulation significantly limited organizers’ access to employers’ property and sole property right affected by regulation was right to exclude. U.S. Const. Amend. 5; Cal. Lab. Code § 1140; Cal. Code Regs. tit. 8, § 20900. 3.C.a Packet Pg. 35 Attachment: AttachmentA--Ninth Circuit decision (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) Cedar Point Nursery v. Shiroma, 923 F.3d 524 (2019) 169 Lab.Cas. P 61,963, 19 Cal. Daily Op. Serv. 4221, 2019 Daily Journal D.A.R. 3857 © 2021 Thomson Reuters. No claim to original U.S. Government Works.2 [5]Eminent Domain What Constitutes a Taking; Police and Other Powers Distinguished A per se Fifth Amendment taking generally occurs where the government requires an owner to suffer a permanent physical invasion of her property, however minor. U.S. Const. Amend. 5. 4 Cases that cite this headnote [6]Eminent Domain What Constitutes a Taking; Police and Other Powers Distinguished Regulations that completely deprive an owner of all economically beneficial use of her property generally constitute a per se Fifth Amendment taking. U.S. Const. Amend. 5. 3 Cases that cite this headnote [7]Property Ownership and incidents thereof One of the essential sticks in the bundle of property rights is the right to exclude others. [8]Eminent Domain What Constitutes a Taking; Police and Other Powers Distinguished In a permanent physical invasion that constitutes a Fifth Amendment taking, the government does not simply take a single “strand” from the “bundle” of property rights: it chops through the bundle, taking a slice of every strand. U.S. Const. Amend. 5. 3 Cases that cite this headnote [9]Searches and Seizures What Constitutes Search or Seizure To establish a claim for seizure of property under the Fourth Amendment, a claimant must plausibly allege that a seizure occurred and that it was unreasonable. U.S. Const. Amend. 4. [10]Searches and Seizures What Constitutes Search or Seizure Regulation under Agricultural Labor Relations Act (ALRA) that allowed union organizers access to agricultural employees at employer work-sites for 360 hours per year, with 120 of those hours during workday, did not effect Fourth Amendment seizure; although employers did not consent to entry of union organizers onto their property, regulation allowed only controlled, non-disruptive visits that were limited in time, place, and number of union organizers. U.S. Const. Amend. 4. 1 Cases that cite this headnote [11]Searches and Seizures What Constitutes Search or Seizure A “seizure” of property occurs when there is some meaningful interference with an individual's possessory interests in that property. U.S. Const. Amend. 4. 2 Cases that cite this headnote Attorneys and Law Firms *526 Wencong Fa (argued), Jeremy Talcott, Joshua P. Thompson, and Damien M. Schiff, Pacific Legal Foundation, Sacramento, California; Ian B. Wieland and Howard A. Sagaser, Sagaser, Watkins & Wieland PC; Fresno, California, for Plaintiffs-Appellants. R. Matthew Wise (argued), Deputy Attorney General; Mark R. Beckington, Supervising Deputy Attorney General; Douglass J. Woods, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, Sacramento, California; for Defendants-Appellees. Frank Garrison and Ilya Shapiro, Cato Institute, Washington, D.C., for Amicus Curiae Cato Institute. Gina Cannon and Steven J. Lechner, Mountain States Legal Foundation, Lakewood, Colorado, for Amicus Curiae Mountain States Legal Foundation. Nancy N. McDonough and Carl G. Borden, California Farm Bureau Federation, for Amicus Curiae California Farm Bureau Federation. 3.C.a Packet Pg. 36 Attachment: AttachmentA--Ninth Circuit decision (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) Cedar Point Nursery v. Shiroma, 923 F.3d 524 (2019) 169 Lab.Cas. P 61,963, 19 Cal. Daily Op. Serv. 4221, 2019 Daily Journal D.A.R. 3857 © 2021 Thomson Reuters. No claim to original U.S. Government Works.3 Mario Martínez, Martínez Aguilasocho & Lynch APLC, Bakersfield, California; Jacob C. Goldberg and Henry M. Willis, Schwartz Steinsapir Dohrmann & Sommers LLP, Los Angeles, California; for Amici Curiae United Farm Workers of America and United Food and Commercial Workers Union, Local 770. Appeal from the United States District Court for the Eastern District of California, Lawrence J. O'Neill, Chief District Judge, Presiding, D.C. No. 1:16-cv-00185-LJO-BAM Before: Edward Leavy, William A. Fletcher, and Richard A. Paez, Circuit Judges. Dissent by Judge Leavy OPINION PAEZ, Circuit Judge: In 1975, the California legislature enacted the Agricultural Labor Relations Act (“ALRA”) to “ensure peace in the agricultural fields by guaranteeing justice for all agricultural workers and stability in labor relations.”1 Among the ALRA's enactments was the creation of the Agricultural Labor Relations Board (“the Board”). Shortly after the ALRA's effective date, the Board promulgated a regulation allowing union organizers access to agricultural employees at employer worksites under specific circumstances. In this case, we are asked to decide whether the access regulation is unconstitutional as applied to Plaintiffs, Cedar Point Nursery and Fowler Packing Company (collectively, “the Growers”). The Growers appeal the district court's dismissal of their complaint seeking declaratory and injunctive relief against members of the Board. The Growers contend that the access regulation, as applied to them, is unconstitutional in two ways. First, the Growers allege that the regulation amounts to a per se taking in violation of the Fifth Amendment because it is a *527 permanent physical invasion of their property without just compensation. Second, the Growers allege that the regulation effects an unlawful seizure of their property in violation of the Fourth Amendment. We conclude the access regulation does not violate either provision, and affirm. BACKGROUND The Access Regulation The ALRA authorized the Board to make “such rules and regulations as may be necessary to carry out” the ALRA. Cal. Lab. Code §§ 1141, 1144. Pursuant to this authority, the Board promulgated an emergency regulation shortly after the ALRA's effective date that allowed union organizers access to employees on their employer's property under limited circumstances. The Board later certified that it had subjected the regulation to notice and comment, allowing the regulation to remain in effect until repealed or amended.2 Agric. Labor Relations Bd. v. Superior Court (Pandol & Sons), 16 Cal.3d 392, 128 Cal.Rptr. 183, 546 P.2d 687, 692 n.3 (1976). The access regulation was promulgated in recognition that [t]he United States Supreme Court has found that organizational rights are not viable in a vacuum. Their effectiveness depends in some measure on the ability of employees to learn the advantages and disadvantages of organization from others. When alternative channels of effective communication are not available to a union, organizational rights must include a limited right to approach employees on the property of the employer. Under such circumstances, both statutory and constitutional principles require that a reasonable and just accommodation be made between the right of unions to access and the legitimate property and business interests of the employer .... Generally, unions seeking to organize agricultural employees do not have available alternative channels of effective communication. Alternative channels of effective communication which have been found adequate in industrial settings do not exist or are insufficient in the context of agricultural labor. Cal. Code Regs. tit. 8, § 20900(b)–(c). Thus, the Board determined that adopting a universally applicable rule for access—as opposed to 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.” Cal. Code Regs. tit. 8, § 20900(d). The access regulation was intended to “provide clarity and predictability to all parties.” Id. In furtherance of these goals, the access regulation declared that the enumerated rights of agricultural employees under the ALRA include “the right of access by union organizers to the premises of an agricultural employer for the purpose 3.C.a Packet Pg. 37 Attachment: AttachmentA--Ninth Circuit decision (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) Cedar Point Nursery v. Shiroma, 923 F.3d 524 (2019) 169 Lab.Cas. P 61,963, 19 Cal. Daily Op. Serv. 4221, 2019 Daily Journal D.A.R. 3857 © 2021 Thomson Reuters. No claim to original U.S. Government Works.4 of meeting and talking with employees and soliciting their support.” Cal. Code Regs. tit. 8, § 20900(e). This right of access is not unlimited. Rather, the access regulation imposes a number of restrictions on access relating to time, place, number of *528 organizers, purpose, and conduct. Id. These restrictions include, among others: [A]n agricultural employer's property shall be available to any one labor organization for no more than four (4) thirty- day periods in any calendar year. § 20900(e)(1)(A). Each thirty-day period shall commence when the labor organization files in the appropriate regional office two (2) copies of a written notice of intention to take access onto the described property of an agricultural employer, together with proof of service of a copy of the written notice upon the employer .... § 20900(e)(1)(B). Organizers may enter the property of an employer for a total period of one hour before the start of work and one hour after the completion of work to meet and talk with employees in areas in which employees congregate before and after working. § 20900(e)(3)(A). In addition, organizers may enter the employer's property for a single period not to exceed one hour during the working day for the purpose of meeting and talking with employees during their lunch period, at such location or locations as the employees eat their lunch. § 20900(e)(3) (B). Any organizer who violates the provisions of this part may be barred from exercising the right of access ... for an appropriate period of time to be determined by the Board after due notice and hearing. Any labor organization or division thereof whose organizers repeatedly violate the provisions of this part may be barred from exercising the right of access ... for an appropriate period of time to be determined by the Board after due notice and hearing. § 20900(e)(5)(A). Shortly after the Board promulgated the access regulation, several agricultural employers challenged the regulation in California state courts on both constitutional and statutory grounds. Pandol & Sons, 128 Cal.Rptr. 183, 546 P.2d at 692. Ultimately, the California Supreme Court, in a 4– 3 decision, vacated several different trial courts’ orders enjoining enforcement of the regulation. Id., 128 Cal.Rptr. 183, 546 P.2d at 690. The Pandol & Sons court rejected the statutory claims by holding that the regulation was a permissible exercise of the Board's statutory authority under the ALRA and that to the extent the access regulation conflicted with the general criminal trespass statute, the access regulation prevailed. Id. at 128 Cal.Rptr. 183, 546 P.2d at 699–06. The court likewise rejected the plaintiffs’ constitutional claims: first, that the regulation violated their due process rights, and second, that it constituted a taking without just compensation. Id. at 128 Cal.Rptr. 183, 546 P.2d at 693–699. The regulation has remained in force to the present. The Growers Plaintiff Cedar Point is an Oregon corporation with a nursery located in Dorris, California. It raises strawberry plants for producers. Cedar Point employs approximately 100 full-time workers and more than 400 seasonal workers at its Dorris nursery. None of its employees lives on the nursery property. Its seasonal employees are housed in hotels in Klamath Falls, Oregon.3 Cedar Point alleges that on October 29, 2015, organizers from the United Farm Workers union (“the UFW”) entered its *529 property at approximately 5 a.m., without providing prior written notice of intent to take access as required by the regulation. At around 6 a.m., the UFW organizers moved to the nursery's trim sheds, where they allegedly “disrupted work by moving through the trim sheds with bullhorns, distracting and intimidating workers.” The majority of workers in the trim sheds did not leave their work stations during this time, although some workers joined the UFW organizers in protest. Most of the workers who had left their stations during the protest returned to work by October 31, two days after the UFW organizers entered the property. Sometime after the UFW organizers had accessed the property, they served Cedar Point with written notice of intent to take access. Following this event, Cedar Point filed a charge against the UFW with the Board, alleging that the UFW had violated the access regulation by failing to provide the required written notice prior to taking access. The UFW likewise filed a charge against Cedar Point, alleging that Cedar Point had committed an unfair labor practice. Cedar Point alleges that “it is likely that [UFW] will attempt to take access again in the near future,” and that it would “exercise its right to exclude the [UFW] trespassers from its property” if not for the regulation. Plaintiff Fowler is a large-scale shipper of table grapes and citrus, and is a California corporation headquartered in Fresno. Fowler employs 1,800 to 2,500 people in its field operations and approximately 500 people at its Fresno 3.C.a Packet Pg. 38 Attachment: AttachmentA--Ninth Circuit decision (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) Cedar Point Nursery v. Shiroma, 923 F.3d 524 (2019) 169 Lab.Cas. P 61,963, 19 Cal. Daily Op. Serv. 4221, 2019 Daily Journal D.A.R. 3857 © 2021 Thomson Reuters. No claim to original U.S. Government Works.5 packing facility. Fowler's employees do not live on the premises; Fowler alleges in the complaint that its employees are “fully accessible to the Union when they are not at work.” The UFW filed an unfair labor practice charge with the Board against Fowler, alleging that Fowler blocked its organizers from taking access permitted by the access regulation on three days in July 2015. The UFW subsequently withdrew the charge in January 2016. Fowler alleges that if it were not for the access regulation, it would oppose union access and “exercise its right to exclude union trespassers from its property.” Procedural History In February 2016, the Growers filed a complaint for declaratory and injunctive relief under 42 U.S.C. § 1983 against several members of the Board and the Board's Executive Secretary, all of whom were sued in their official capacities.4 The Growers alleged that the access regulation, as applied to them, amounts to a taking in violation of the Fifth Amendment and that it effects an unlawful seizure of their property in violation of the Fourth Amendment. They sought declaratory and injunctive relief, barring the Board from enforcing the regulation against them. Upon filing the complaint, the Growers filed a motion for a preliminary injunction to bar enforcement of the regulation against them. The Board opposed the motion and promptly moved to dismiss the Growers’ complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. [1]After denying the Growers’ motion for injunctive relief as to both the Fifth and Fourth Amendment claims, the district court granted the Board's motion to dismiss. The district court rejected the *530 Growers’ argument that the regulation constitutes a per se categorical taking, either on its face or as applied to them.5 As to the Fourth Amendment claim, the district court held that the Growers had not plausibly alleged that the regulation “has been or will be enforced against them in a manner that will cause a meaningful interference with their possessory interests” such that it would effect a seizure within the meaning of the Fourth Amendment.6 The district court granted the Growers leave to amend. The Growers declined to amend the complaint, and the district court entered judgment in favor of the Board in July, 2016. The Growers timely appealed. STANDARD OF REVIEW [2] [3]We review de novo a district court's order granting a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1061 (9th Cir. 2008). In evaluating a motion to dismiss under Rule 12(b)(6), “[r]eview is limited to the complaint, materials incorporated into the complaint by reference, and matters of which the court may take judicial notice.” Id. (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)). We may affirm a 12(b)(6) dismissal “on any ground supported by the record, even if the district court did not rely on the ground.” Livid Holdings, Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 950 (9th Cir. 2005). In evaluating a 12(b) (6) motion, we accept “as true all well-pleaded allegations of fact in the complaint” and construe them in the light most favorable to the non-moving party. United States v. Corinthian Colls., 655 F.3d 984, 991 (9th Cir. 2011). To survive a motion to dismiss, the complaint “must contain sufficient factual matter” that, taken as true, states “a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). DISCUSSION The Growers argue that the access regulation as applied to them amounts to a per se taking in violation of the Fifth Amendment and effects an unlawful seizure of their property in violation of the Fourth Amendment. I. Fifth Amendment Per Se Takings Claim [4]We turn first to the Growers taking claim. We agree with the district court that the allegations in the complaint, taken as true, are insufficient to state a plausible claim for relief as a per se taking under the Fifth Amendment's Takings Clause. The Fifth Amendment's Takings Clause “provides that private property shall not ‘be taken for public use, without just compensation.’ ” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005). The Supreme Court has recognized three categories of regulatory *531 action in its takings jurisprudence, each of which “aims to identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain” and which focus a court's inquiry “directly upon the severity of 3.C.a Packet Pg. 39 Attachment: AttachmentA--Ninth Circuit decision (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) Cedar Point Nursery v. Shiroma, 923 F.3d 524 (2019) 169 Lab.Cas. P 61,963, 19 Cal. Daily Op. Serv. 4221, 2019 Daily Journal D.A.R. 3857 © 2021 Thomson Reuters. No claim to original U.S. Government Works.6 the burden that government imposes upon private property rights.” Id. at 539, 125 S.Ct. 2074. [5] [6]The first category is “where government requires an owner to suffer a permanent physical invasion of her property —however minor.” Id. at 538, 125 S.Ct. 2074 (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982)). The second category involves regulations that “completely deprive an owner of ‘all economically beneficial us[e]’ of her property.” Id. (emphasis in original) (quoting Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)). These first two categories involve actions that “generally will be deemed [per se] takings for Fifth Amendment purposes,” but both categories are “relatively narrow.” Id. The third category covers the remainder of regulatory actions, which are governed by the standards set forth in Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). Id. Here, the Growers allege that the access regulation, as applied to them, effects a Fifth Amendment taking by creating an easement that allows union organizers to enter their property “without consent or compensation.” The Growers base their Fifth Amendment argument entirely on the theory that the access regulation constitutes a permanent physical invasion of their property and therefore is a per se taking. In Loretto, the Supreme Court held that a state law requiring landlords to allow installation of cable facilities by cable television companies on their property constituted a per se taking because the installation was a permanent, albeit minor, physical occupation of the property. 458 U.S. at 421–423, 441, 102 S.Ct. 3164. The Court noted the “constitutional distinction between a permanent occupation and a temporary physical invasion.” Id. at 434, 102 S.Ct. 3164. The Growers argue that, under Loretto, the access regulation is a permanent physical occupation, as opposed to a temporary invasion. The Growers contend that the concept of permanence, as contemplated in Loretto, “does not require the physical invasion to be continuous, but instead that it have no contemplated end-date.” This argument is contradicted by the Court's opinions in PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) and Nollan v. California Coastal Commission, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987). In PruneYard, the Supreme Court considered whether the California Supreme Court's decision in Robins v. Pruneyard Shopping Center, 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341 (1979), violated the Takings Clause. 447 U.S. at 76–77, 100 S.Ct. 2035. In that case, the California Supreme Court held that the California Constitution protects reasonably exercised speech and petitioning in privately owned shopping centers. Robins, 153 Cal.Rptr. 854, 592 P.2d at 347. The PruneYard, a privately owned shopping center that was open to the public for purposes of patronizing its commercial establishments, had a policy of forbidding visitors and tenants from engaging in public expressive activity unrelated to commercial purposes. PruneYard, 447 U.S. at 77, 100 S.Ct. 2035. Although the dissent correctly points out that PruneYard involved free speech, it also addressed a taking claim under the *532 Fifth Amendment. Dissent at 536–37. As relevant here, the Court recognized that the California Supreme Court's decision “literally” constituted a “taking” of PruneYard's right to exclude others, but noted, “not every destruction or injury to property by governmental action has been held to be a ‘taking’ in the constitutional sense.” PruneYard, 447 U.S. at 82, 100 S.Ct. 2035 (citing Armstrong v. United States, 364 U.S. 40, 48, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960)). The Court concluded that requiring the PruneYard to “permit appellees to exercise state-protected rights of free expression and petition on shopping center property clearly does not amount to an unconstitutional infringement of [the PruneYard's] property rights under the Taking Clause.” Id. at 83, 100 S.Ct. 2035. Thus, in PruneYard there was no “contemplated end-date” to the California Supreme Court's decision holding that the California Constitution protects reasonably exercised speech and petitioning in privately owned shopping centers. Yet, contrary to the Growers’ argument, the Court did not conclude that the California Supreme Court's decision resulted in a permanent physical invasion. Id. at 83–84, 100 S.Ct. 2035. Similarly, Nollan does not support the Growers’ theory. There, the Court considered whether the California Coastal Commission could condition the grant of a permit to rebuild a house on a transfer to the public of an easement across beachfront property. Nollan, 483 U.S. at 827, 107 S.Ct. 3141. The Court held that California could use its power of eminent domain for this “public purpose,” but if it wanted an easement, it must pay for it. Id. at 841–42, 107 S.Ct. 3141. In its analysis, the Court concluded that a permanent physical occupation occurs “where individuals are given a permanent and continuous right to pass to and fro, so 3.C.a Packet Pg. 40 Attachment: AttachmentA--Ninth Circuit decision (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) Cedar Point Nursery v. Shiroma, 923 F.3d 524 (2019) 169 Lab.Cas. P 61,963, 19 Cal. Daily Op. Serv. 4221, 2019 Daily Journal D.A.R. 3857 © 2021 Thomson Reuters. No claim to original U.S. Government Works.7 that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises.” Id. at 832, 107 S.Ct. 3141. It noted that that the PruneYard holding was not inconsistent with this analysis, “since there the owner had already opened his property to the general public, and in addition permanent access was not required.” Id. at 832, n.1, 107 S.Ct. 3141. Although the access regulation does not have a “contemplated end-date,” it does not meet Nollan's definition of a permanent physical occupation. As structured, the regulation does not grant union organizers a “permanent and continuous right to pass to and fro” such that the Growers’ property “may continuously be traversed.” Id. at 832, 107 S.Ct. 3141. The regulation significantly limits organizers’ access to the Growers’ property. Unlike in Nollan, it does not allow random members of the public to unpredictably traverse their property 24 hours a day, 365 days a year. [7] [8]Furthermore, the Growers have not suffered 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. “[I]t is true that one of the essential sticks in the bundle of property rights is the right to exclude others.” PruneYard, 447 U.S. at 82, 100 S.Ct. 2035 (internal citation omitted). In a permanent physical invasion, however, “the government does not simply take a single ‘strand’ from the ‘bundle’ of property rights: it chops through the bundle, taking a slice of every strand.” Loretto, 458 U.S. at 435, 102 S.Ct. 3164; accord Murr v. Wisconsin, ––– U.S. ––––, 137 S. Ct. 1933, 1952, 198 L.Ed.2d 497 (2017) (“[W]here an owner possesses a full ‘bundle’ of property rights, the destruction of one strand of the bundle is not a taking, because the aggregate must be viewed in its entirety.”) (Roberts, C.J., dissenting) *533 (quoting Andrus v. Allard, 444 U.S. 51, 65–66, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979)). The Growers do not allege that other property rights are affected by the access regulation. This undermines their contention that the access regulation effects a taking because they only allege that the regulation affects “one strand of the bundle” of property rights. Cf. Dolan v. City of Tigard, 512 U.S. 374, 394, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994) (noting that unlike in PruneYard, a permanent recreational easement would not merely “regulate” plaintiff's right to exclude, but rather would “eviscerate” it, as she “would lose all rights to regulate the time in which the public entered onto the [property], regardless of any interference it might pose with her retail store”). The above discussion leads us to conclude that the access regulation is not a permanent physical taking. We do note, however, that in PruneYard, the Court analyzed the restriction under the standards set forth in Penn Central Transportation Co. v. New York City, rather than analyzing it as a permanent physical invasion.7 PruneYard, 447 U.S. at 83–84, 100 S.Ct. 2035. In its analysis, the Court noted there was “nothing to suggest” that the restriction would “unreasonably impair the value or use of [the] property as a shopping center” and that the PruneYard was “a large commercial complex ... [that was] open to the public at large.” Id. The Growers attempt to distinguish their case from PruneYard by overstating the extent to which the Supreme Court relied on the fact that the PruneYard was a shopping center generally open to the public. While that was a consideration for the Court, it was not a dispositive one—and critically, it only factored into the Court's analysis under the standards set forth in Penn Central. Id. at 82–83, 100 S.Ct. 2035. PruneYard’s use of the Penn Central analysis further weighs against the Growers’ contention that the access regulation is a permanent physical taking. In many ways, the access restriction is analogous to the restriction at issue in PruneYard, which required the shopping center to permit individuals to exercise free speech rights on its property. PruneYard, 447 U.S. at 76–77, 100 S.Ct. 2035. The Court's analysis of this restriction under Penn Central counsels against analyzing the access regulation as a permanent per se taking.8 Furthermore, the question of whether the access regulation falls under the category of takings governed by Penn Central is not before this court. At no point in this litigation have the Growers challenged the regulation under Penn Central. Their complaint *534 alleges that the access regulation causes an unconstitutional taking because it “creates an easement for union organizers to enter [the Growers’] private property without consent or compensation.” Before the district court, the Growers argued that the access regulation should be treated as a per se taking because the Growers must surrender their right to exclude trespassers permanently. And before this court, they argued in their opening brief that the access regulation involved a physical invasion, as opposed to a regulatory taking. Therefore, we take no position regarding whether the access regulation falls under the category of takings governed by the standards set forth in Penn Central. 3.C.a Packet Pg. 41 Attachment: AttachmentA--Ninth Circuit decision (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) Cedar Point Nursery v. Shiroma, 923 F.3d 524 (2019) 169 Lab.Cas. P 61,963, 19 Cal. Daily Op. Serv. 4221, 2019 Daily Journal D.A.R. 3857 © 2021 Thomson Reuters. No claim to original U.S. Government Works.8 The dissent contends that our analysis should be guided by NLRB v. Babcock & Wilcox, 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), and its progeny.9 Dissent at 537– 38. Babcock, however, pertained to an alleged violation of section 7 of the National Labor Relations Act (“NLRA”). Nat'l Labor Relations Bd. v. Babcock & Wilcox Co., 351 U.S. 105, 106, 76 S.Ct. 679, 100 L.Ed. 975 (1956); see also Lechmere, Inc. v. N.L.R.B., 502 U.S. 527, 529, 112 S.Ct. 841, 117 L.Ed.2d 79 (1992) (“This case requires us to clarify the relationship between the rights of employees under § 7 of the National Labor Relations Act (NLRA or Act) ... and the property rights of their employers.”); Hudgens v. N. L. R. B., 424 U.S. 507, 508, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976) (“The question presented is whether this threat violated the National Labor Relations Act.”). The NLRA does not apply to “any individual employed as an agricultural laborer.” 29 U.S.C. § 152(3). And while Babcock may be helpful in analyzing challenges to the access regulation under the ALRA, it is not relevant to the Growers’ contention that the access regulation is a physical per se taking in violation of the Fifth Amendment. In conclusion, we hold that the access regulation as applied to the Growers does not amount to a per se physical taking of their property in violation of the Fifth Amendment. Having been granted the opportunity to amend their complaint and having declined to do so, the district court did not err in dismissing the Growers’ takings claim. II. Fourth Amendment Seizure Claim [9] [10]The first clause of the Fourth Amendment provides that the “right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. To establish a seizure claim under the Fourth Amendment, the Growers must plausibly allege that a seizure occurred and that it was unreasonable. See Soldal v. Cook County, Ill., 506 U.S. 56, 61–62, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992). We agree with the district court's conclusion that the Growers failed to allege a plausible claim *535 that the access regulation, as applied to them, effects a seizure protected by the Fourth Amendment. [11]A “ ‘seizure’ of property occurs when there is some meaningful interference with an individual's possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113 n.5, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). First, the Growers argue the access regulation effects a seizure because it substantially interferes with their right to exclude. They contend that the access regulation authorizes a “technical trespass.” The majority's holding in United States v. Karo undercuts the Growers’ Fourth Amendment seizure argument. 468 U.S. 705, 712–13, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). There, the Court considered, inter alia, whether the transfer of a container by federal agents containing an unknown and unwanted beeper constituted a seizure. Id. at 712, 104 S.Ct. 3296. First, the Court held that “[t]he existence of a physical trespass is only marginally relevant to the question of whether the Fourth Amendment has been violated ... for an actual trespass is neither necessary nor sufficient to establish a constitutional violation.” Id. at 712–13, 104 S.Ct. 3296. The Court then concluded that the mere transfer of the container with an unmonitored beeper did not constitute a seizure because it did not interfere with anyone's possessory interest in a meaningful way. Id. at 712, 104 S.Ct. 3296. The Court noted that “[a]t most, there was a technical trespass on the space occupied by the beeper,” but “if the presence of a beeper in the can constituted a seizure merely because of its occupation of space, it would follow that the presence of any object, regardless of its nature, would violate the Fourth Amendment.” Id. at 712–13, 104 S.Ct. 3296.10 More importantly, the Growers fail to cite any directly applicable authority supporting their contention that the access regulation is a meaningful interference with their possessory interests in their property. The Growers rely on Presley v. City of Charlottesville, 464 F.3d 480 (4th Cir. 2006), to support their argument. There, the Fourth Circuit concluded that the alleged “constant physical occupation” constituted a “ ‘meaningful interference’ with [the plaintiff's] ‘possessory interests’ in her property.” Id. at 487 (citing Jacobsen, 466 U.S. at 113, 104 S.Ct. 1652). The case concerned a trail map published by the city of Charlottesville that mistakenly showed a trail crossing through Presley's property (which encompassed less than an acre of land). Id. at 482. City officials refused to correct the error when Presley repeatedly complained, and declined to offer her compensation in exchange for an easement. Id. at 482–83. Presley had posted over 100 “No Trespassing” signs on her property, “all of which were defaced or destroyed.” Id. at 483. Although Presley contacted the police to help stop trespassers, the police “could not stem the tide.” Id. When Presley installed razor wire on her property in an attempt to block the trespassers, the city enacted an ordinance to prohibit her from pursuing such protective measures, and 3.C.a Packet Pg. 42 Attachment: AttachmentA--Ninth Circuit decision (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) Cedar Point Nursery v. Shiroma, 923 F.3d 524 (2019) 169 Lab.Cas. P 61,963, 19 Cal. Daily Op. Serv. 4221, 2019 Daily Journal D.A.R. 3857 © 2021 Thomson Reuters. No claim to original U.S. Government Works.9 initiated a criminal prosecution (later dismissed) against her for violation of the ordinance. Id. *536 The factual circumstances in Presley make it inapposite to the access regulation as applied to the Growers. As the Fourth Circuit noted, Presley alleged that she had been “deprived of the use of her property due to the regular presence of a veritable army of trespassers who freely and regularly traverse her yard, littering, making noise, damaging her land, and occasionally even camping overnight.” Id. at 487. Here, the Growers do not make such allegations. They do not allege that the access regulation authorizes an intrusion that is constant, uncontrollable (even with police assistance), unpredictable, damaging, and stressful. The access regulation only allows controlled, non-disruptive visits that are limited in time, place, and number of union organizers. Second, the Growers argue that the access regulation effects a seizure because it profoundly changes the character of the property. They urge us to adopt the test set forth in Justice Stevens’ partial concurrence in United States v. Karo. There, Justice Stevens argued that a meaningful interference occurs when “the character of the property is profoundly different” with the interference than without it. Karo, 468 U.S. at 729, 104 S.Ct. 3296 (Stevens, J., concurring in part dissenting in part). Yet even assuming this were the proper test, the Growers have not alleged facts showing that the character of their property is somehow “profoundly different” because of the access regulation. At most, the regulation would allow organizers access to the Growers’ property 360 hours a year out of a total 8,760 hours (and only 120 of those hours would be during the workday). The Growers argue that the access regulation “transform[s] [their] property from a forum for production into a proselytizing opportunity for union organizers,” but there are no such allegations in the complaint. We therefore hold that the Growers have not plausibly alleged that the access regulation effects a “seizure” within the meaning of the Fourth Amendment. AFFIRMED. LEAVY, Circuit Judge, dissenting: I respectfully dissent. In my view, the complaint sufficiently alleges that the Agricultural Labor Relations Board's Access Regulation is an unconstitutional taking, so the district court erred in granting the motion to dismiss. The Growers allege that no employees reside on the employers property, and that alternative methods of effective communication are available to the nonemployee union organizers who, under the Access Regulation, are allowed to physically enter the Growers’ properties for substantial time periods. Specifically, I have found no Supreme Court case holding that non-employee labor organizers may enter an employer's nonpublic, private property for substantial periods of time, when none of the employees live on the employer's premises. In spite of the majority's reliance on PruneYard Shopping Center. v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), this is not a free speech case.1 *537 Instead, this case involves labor relations and the government's policy of encouraging collective bargaining. Thus, PruneYard provides little guidance.2 The California Legislature directs the Agricultural Labor Relations Board to “follow applicable precedents of the National Labor Relations Act.” Cal. Labor Code § 1148. The outcome of this case is guided by cases concerning the rights of nonemployees to physically access the employer's property in order to communicate with employees about union organization. Although the NLRA's enforcement authority does not apply to “any individual employed as an agricultural laborer.” 29 U.S.C. § 152(3), there is no dispute in this case about the agricultural status of the employee laborers. Rather, the dispute raised in the Grower's complaint is the constitutionality of the Board's regulation requiring employers to grant substantial physical access to nonemployee organizers where the agricultural employees do not reside on the employers’ private property and are not beyond the reach of the organizers’ message. The California Supreme Court, when first analyzing the Access Regulation in Pandol & Sons, 128 Cal.Rptr. 183, 546 P.2d at 692 (1976), correctly framed the issue: “The matter at bar, by contrast, is not primarily a First Amendment case ... ; rather, the interest asserted is the right of workers employed on the premises in question to have effective access to information assisting them to organize into representative units pursuant to a specific governmental policy of encouraging collective bargaining.” Id. at 128 Cal.Rptr. 183, 546 P.2d at 694 (emphasis added). The Pandol court looked for guidance to NLRB v. Babcock & Wilcox, 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), “[W]hen the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels, the right to exclude from property has been required to yield to the extent needed 3.C.a Packet Pg. 43 Attachment: AttachmentA--Ninth Circuit decision (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) Cedar Point Nursery v. Shiroma, 923 F.3d 524 (2019) 169 Lab.Cas. P 61,963, 19 Cal. Daily Op. Serv. 4221, 2019 Daily Journal D.A.R. 3857 © 2021 Thomson Reuters. No claim to original U.S. Government Works.10 to permit communication of information on the right to organize.” Pandol, 406, 546 P.2d at 699 (quoting Babcock, 351 U.S. at 112, 76 S.Ct. 679). The Pandol court upheld the regulation under the California constitution, comparing the inaccessibility of workers in California's agricultural industry to federal labor cases involving inaccessibility of workers in mining camps, lumber camps, and rural resort hotels. Id. at 406–408. The Pandol court summarized the rule of Babcock: “[I]f the circumstances of employment place the employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property.” Id. at 409 (quoting Babcock, 351 U.S. at 113, 76 S.Ct. 679) (emphasis added). The Babcock rule has not been abrogated. See Lechmere v. NLRB, 502 U.S. 527, 540–41, 112 S.Ct. 841, 117 L.Ed.2d 79 (1992) (reaffirming Babcock); Hudgens v. NLRB, 424 U.S. 507, 521–22, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976) (approving Babcock's admonition *538 that accommodation between employees’ labor rights and employers’ property rights “must be obtained with as little destruction of one as is consistent with the maintenance of the other”); Central Hardware Co. v. NLRB, 407 U.S. 539, 545, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972) (explaining that under Babcock, nonemployee organizers cannot claim a limited right of access to a nonconsenting employer's property until after the requisite need for access to the property has been shown); ITT Industries, Inc. v. N.L.R.B., 251 F.3d 995, 999 (D.C. Cir. 2001) (“For nearly fifty years, it has been black-letter labor law that the Board cannot order employers to grant nonemployee union organizers access to company property absent a showing that on-site employees are otherwise inaccessible through reasonable efforts.”). In my view, the Access Regulation allowing ongoing access to Growers’ private properties, multiple times a day for 120 days a year (four 30-day periods per year) is a physical, not regulatory, occupation because the “right to exclude” is “one of the most fundamental sticks” in the bundle of property rights. Dolan v. City of Tigard, 512 U.S. 374, 394, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994); Kaiser Aetna v. United States, 444 U.S. 164, 179–80, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979) (stating that the right to exclude others is one of the “essential sticks” in the bundle of property rights). The Growers need not allege that the Access Regulation affects more property right “sticks” beyond this single, fundamental property right.3 The complaint alleges that the Access Regulation is unconstitutional because the Growers’ employees, none of whom live on the Growers’ premises, are not beyond the reach of union efforts. The complaint alleges employees can be reached by union organizers at nearby, off-premises locations through alternative means of communication. Complaint, Par. 27 (“Seasonal workers at Cedar Point are housed in hotels in nearby Klamath Falls, Oregon. None of Cedar Point's full- time or seasonal employees live on the Nursery's property.”); Complaint, Par. 37 (“Fowler's employees do not live on the premises and are fully accessible to the Union when they are not at work.”); Complaint Par. 64 (“And because such access is unnecessary given the alternative means of communication available, see Lechmere v. NLRB, 502 U.S. 527, 540–41, 112 S.Ct. 841, 117 L.Ed.2d 79 (1992), it is unreasonable to allow union organizers to seize this possessory interest in Plaintiff's property.”). The Supreme Court in Lechmere expressly reaffirmed Babcock's critical distinction between employees and nonemployees regarding union activities on private property. Id. at 537, 112 S.Ct. 841. The Court also reaffirmed Babcock’s general rule that “an employer may validly post his property against nonemployee distribution of union literature,” and rejected an initial balancing test. The Court stated that the threshold inquiry is whether the facts in a case justify application of Babcock’s inaccessibility exception. Id. at 538– 39, 112 S.Ct. 841. The Court explained, “[T]he exception to Babcock's rule is a narrow one. It does not apply wherever nontrespassory access to employee may be cumbersome or less-than-ideally effective, but only where ‘the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to *539 communicate with them.” Id. at 539, 112 S.Ct. 841 (quoting Babcock, 351 U.S. at 113, 76 S.Ct. 679 (original emphasis)). The Court concluded, “[B]ecause the employees do not reside on Lechmere's property, they are presumptively not ‘beyond the reach’ of the union's message.” Id. at 540, 112 S.Ct. 841 (internal citation omitted). Here, in light of the Growers’ allegations, the burden should shift to the defendants to show “unique obstacles” that frustrate their reasonable access to the Growers’ employees. See id. at 540– 41, 112 S.Ct. 841. In summary, because the Growers sufficiently allege that no employees live on the Growers’ properties and the employees are not beyond the reach of the union's message, the district court erred in dismissing the complaint. 3.C.a Packet Pg. 44 Attachment: AttachmentA--Ninth Circuit decision (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) Cedar Point Nursery v. Shiroma, 923 F.3d 524 (2019) 169 Lab.Cas. P 61,963, 19 Cal. Daily Op. Serv. 4221, 2019 Daily Journal D.A.R. 3857 © 2021 Thomson Reuters. No claim to original U.S. Government Works.11 All Citations 923 F.3d 524, 169 Lab.Cas. P 61,963, 19 Cal. Daily Op. Serv. 4221, 2019 Daily Journal D.A.R. 3857 Footnotes 1 Cal. Lab. Code § 1140 note (West 2011) (Historical and Statutory Notes). 2 As the California Supreme Court explained, “The regulation took effect on August 29, 1975. An emergency regulation automatically expire[d] 120 days after its effective date unless the agency certifie[d] during that period that it has complied with certain requirements of notice and hearing.” Pandol & Sons, 128 Cal.Rptr. 183, 546 P.2d at 692 n.3 (internal citation omitted). The Board certified that it had completed these requirements on December 2, 1975. Id. 3 There are no allegations in the complaint regarding where Cedar Point's full-time workers live. 4 As all Defendants were sued in their official capacities, we refer to them collectively as “the Board” throughout this opinion. The Growers’ suit, which seeks only prospective, declaratory, and injunctive relief, is not barred by the Eleventh Amendment. See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); see also Seven Up Pete Venture v. Schweitzer, 523 F.3d 948, 956 (9th Cir. 2008). 5 Takings claims are not ripe in federal court “until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue” and the state has denied the plaintiff any opportunity for just compensation. Williamson Cty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186, 195, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). Although the Board does not challenge ripeness on appeal, we agree with the district court that the Growers’ takings claim is ripe for consideration. 6 Because the Growers did not meet their burden as to the “threshold issue” of plausibly alleging a seizure, the district court did not discuss reasonableness in its order dismissing the case. 7 In Penn Central, the Supreme Court observed that an “ad hoc” factual inquiry was required to determine whether a regulatory action required compensation under the Fifth Amendment. 438 U.S. at 124, 98 S.Ct. 2646. The Court identified “several factors that have particular significance,” including the economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the government action. Id.; see also Horne v. Dep't of Agric., ––– U.S. ––––, 135 S. Ct. 2419, 2427, 192 L.Ed.2d 388 (2015). 8 The Court also contrasted the PruneYard shopping center's situation with that of the plaintiffs in Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979). See PruneYard, 447 U.S. at 84, 100 S.Ct. 2035. Kaiser Aetna also weighs against the Growers’ theory that the access regulation is a permanent physical taking. There, the Court held that requiring owners of a public pond to allow free public use of its marina constituted a taking—but only after applying the Penn Central analysis, rather than the permanent physical invasion analysis. Kaiser Aetna, 444 U.S. at 178–180, 100 S.Ct. 383. 9 The dissent points out that the California Supreme Court looked to Babcock for guidance when first analyzing the access regulation in Pandol & Sons. Dissent at 537. There, the court also pointed out that the Board determined that “significant differences existed between the working conditions of industry in general and those of California agriculture.” Pandol & Sons, 128 Cal.Rptr. 183, 546 P.2d at 702. The court highlighted some of those differences including that “many farmworkers are migrants,” “the same employees did not arrive and depart every day on fixed schedules, there were no adjacent public areas where the employees congregated or through which they regularly passed, and the employees could not effectively be reached at permanent addresses or telephone numbers in the nearby community, or by media advertising.” Id. The record is silent on whether the Board has revisited these differences. In any event, we do not need to address them because the only issue before us is whether the access regulation is a per se physical taking. 10 The Growers attempt to distinguish their case from Karo by pointing out that federal agents placed the beeper with the consent of the original owner before possession was transferred. They argue that that they did not consent to the entry of the union organizers onto their property. Yet, the original owner's consent was relevant to the Karo Court's analysis of whether “the actual placement of the beeper into the can” violated the defendant's Fourth Amendment rights, but did not factor into the Court's analysis of whether the transfer of the can to Karo was a seizure. Karo, 468 U.S. at 711–13, 104 S.Ct. 3296. 1 The issue in PruneYard was whether the California constitution, which allows individuals to exercise First Amendment rights on private shopping center property, violated the federal constitution. The issue involved “only a state-created right of limited access to a specialized type of property.” Id. at 98, 100 S.Ct. 2035 (Powell, concurring). The PruneYard 3.C.a Packet Pg. 45 Attachment: AttachmentA--Ninth Circuit decision (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) Cedar Point Nursery v. Shiroma, 923 F.3d 524 (2019) 169 Lab.Cas. P 61,963, 19 Cal. Daily Op. Serv. 4221, 2019 Daily Journal D.A.R. 3857 © 2021 Thomson Reuters. No claim to original U.S. Government Works.12 “specialized property” was a multi-block shopping center, open to the public to “come and go as they please,” id. at 87, 100 S.Ct. 2035, where “25,000 persons are induced to congregate daily.” Id. at 78, 100 S.Ct. 2035 (quoting Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d 899, 910–911, 153 Cal.Rptr. 854, 592 P.2d 341 (1979)). By contrast, in this case, the Growers are private employers with employees entering their properties daily for the sole purpose of agricultural work, with no public access. 2 The property owner in Pruneyard wields the power to impose time, place, and manner restrictions on the general public's free expression rights on its premises. In the case at bar, a California agency imposes its power to regulate time, place, and manner restrictions on the Growers’ right to exclude nonemployees. In other words, Pruneyard involves a private party regulating the expressive conduct of other private parties entering its property where the public is invited. Our case involves a state agency universally regulating the access of nonemployee organizers on non-public, private property. 3 The majority fails to cite any cases dealing with the property rights of employers as opposed to access rights by nonemployees. End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. 3.C.a Packet Pg. 46 Attachment: AttachmentA--Ninth Circuit decision (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) Cedar Point Nursery v. Shiroma, 956 F.3d 1162 (2020) 170 Lab.Cas. P 62,038, 20 Cal. Daily Op. Serv. 3747, 2020 Daily Journal D.A.R. 3959 © 2021 Thomson Reuters. No claim to original U.S. Government Works.1 956 F.3d 1162 United States Court of Appeals, Ninth Circuit. CEDAR POINT NURSERY; Fowler Packing Company, Inc., Plaintiffs-Appellants, v. Genevieve SHIROMA; Cathryn Rivera-Hernandez; Santiago Avila-Gomez, Esquire; Isadore Hall III, Defendants-Appellees. No. 16-16321 | Filed April 29, 2020 Attorneys and Law Firms Wencong Fa (argued), Jeremy Talcott, Joshua P. Thompson, Damien M. Schiff, and Christopher M. Kieser, Pacific Legal Foundation, Sacramento, California; Ian B. Wieland and Howard A. Sagaser, Sagaser Watkins & Wieland PC; Fresno, California; for Plaintiffs-Appellants. R. Matthew Wise (argued), Deputy Attorney General; Mark R. Beckington, Supervising Deputy Attorney General; Douglass J. Woods and Thomas S. Patterson, Senior Assistant Attorneys General; Xavier Becerra, Attorney General; Office of the Attorney General, Sacramento, California; for Defendants-Appellees. Frank Garrison and Ilya Shapiro, Cato Institute, Washington, D.C., for Amicus Curiae Cato Institute. Steven J. Lechner, Mountain States Legal Foundation, Lakewood, Colorado, for Amicus Curiae Mountain States Legal Foundation. Nancy N. McDonough and Carl G. Borden, California Farm Bureau Federation, Sacramento, California, for Amicus Curiae California Farm Bureau Federation. Mario Martínez, Martínez Aguilasocho & Lynch APLC, Bakersfield, California; Jacob C. Goldberg and Henry M. Willis, Schwartz Steinsapir Dohrmann & Sommers LLP, Los Angeles, California; for Amici Curiae United Farm Workers of America and United Food and Commercial Workers Union, Local 770. D.C. No. 1:16-cv-00185-LJO-BAM Before: Edward Leavy, William A. Fletcher, and Richard A. Paez, Circuit Judges. Concurrence by Judge Paez; Dissent by Judge Ikuta ORDER The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed R. App. P. 35. The petition for rehearing en banc is DENIED. Attached are a dissent from and a concurrence respecting the denial of rehearing en banc. PAEZ, Circuit Judge, concurring in the denial of rehearing en banc, joined by W. FLETCHER, Circuit Judge: A majority of the active judges of the court voted against rehearing this case en banc. I concur in that decision and write only to respond to arguments raised in Judge Ikuta's dissent from that decision, *1163 which were not raised by the parties. The dissent argues that the panel opinion failed to address the Growers’ central argument that the Access Regulation appropriates an easement by granting union organizers access to their property without their approval. According to the dissent, because an easement is a species of property, the Access Regulation effects a taking of property in violation of the Fifth Amendment. The dissent accuses the majority of ignoring the Growers’ claim and reframing it as a different one. This seriously mischaracterizes the Growers’ arguments before this court. They argued one and only one theory of their case: that the Access Regulation amounted to a “permanent physical invasion” of their property. They did not argue that the taking of an easement was the beginning and end of the analysis. They wisely did not do so because the argument advanced by Judge Ikuta fundamentally misapprehends existing Supreme Court authority. 3.C.b Packet Pg. 47 Attachment: AttachmentB--DenialofRehearing (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) Cedar Point Nursery v. Shiroma, 956 F.3d 1162 (2020) 170 Lab.Cas. P 62,038, 20 Cal. Daily Op. Serv. 3747, 2020 Daily Journal D.A.R. 3959 © 2021 Thomson Reuters. No claim to original U.S. Government Works.2 * * * The dissent's central doctrinal argument is that the state engages in a Fifth Amendment taking whenever it appropriates an easement. As support for this bright-line rule, the dissent cites a series of Supreme Court cases purportedly holding that the imposition of any easement is a per se taking. The cases say no such thing. In Portsmouth Harbor Land and Hotel Co. v. United States, for instance, the dissent points out that the Court remarked that a “servitude” constitutes “an appropriation of property for which compensation should be made.” 260 U.S. 327, 329, 43 S.Ct. 135, 67 L.Ed. 287 (1922) (citation omitted). But what the dissent neglects to mention is that in Portsmouth Harbor, the Court limited its inquiry to whether the servitude imposed in that case “would constitute an appropriation of property for which compensation should be made” when the intrusion “result[ed] in depriving the owner of its profitable use[.]” Id. (citation omitted) (emphasis added). The Court applied that same basic principle in United States v. Causby. There, the Court considered whether a taking had occurred where military flights in the airspace over the plaintiffs’ property resulted in “the destruction of the use of the property as a commercial chicken farm.” 328 U.S. 256, 259, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946). The government conceded—and the Court agreed—that the military flight activities would effect a taking if the “flights over respondents’ property rendered it uninhabitable.” Id. at 261, 66 S.Ct. 1062. The government's actions resulted in the taking of an “easement of flight” and, “if permanent and not merely temporary, normally would be the equivalent of a fee interest.” Id. at 261–62, 66 S.Ct. 1062. The government's acts “would be a definite exercise of complete dominion and control over the surface of the land.” Id. at 262, 66 S.Ct. 1062. “If, by reason of the frequency and altitude of the flights, respondents could not use this land for any purpose, their loss would be complete. It would be as complete as if the United States had entered upon the surface of the land and taken exclusive possession of it.” Id. at 261, 66 S.Ct. 1062 (footnote omitted). Although there was a taking of an “easement of flight,” a Fifth Amendment taking occurred not only because of the “easement,” but because of the severe negative effects of the government's actions on the plaintiffs’ property. Id. at 261–62, 66 S.Ct. 1062. Neither of these cases stands for the proposition that a regulatory easement which allows intermittent intrusions onto private property will result in a taking where there is no evidence that the intrusion has rendered the property “uninhabitable,” id. at 261, 66 S.Ct. 1062, or “depriv[ed] the owner of its profitable use,” Portsmouth Harbor, 260 U.S. at 329, 43 S.Ct. 135. *1164 The dissent faults the majority for failing to address whether the appropriation of an easement, by itself, violates the Takings Clause. The dissent complains that the majority instead erroneously focuses on whether the Access Regulation amounted to a “permanent physical invasion.” As support for this accusation, the dissent notes that in their complaint, the Growers allege that “the access regulation now creates an easement for union organizers to enter Plaintiffs’ private property without consent or compensation.” The dissent then asserts that the majority “ignore[d]” and “re- characteriz[ed]” the Growers’ claim. But the dissent's theory is not the theory the Growers advanced in their appellate briefs. Although the Growers did assert that the Access Regulation “appropriat[es] an easement[,]” they argued that the easement was a “permanent physical intrusion” under Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). As a result of this intrusion, the Growers argued, the Access Regulation effected an unconstitutional taking. Guided by the Nollan1 standard—that a “permanent physical invasion” occurs when the state grants the public a “permanent and continuous right to pass to and fro, so that the real property may continuously be traversed”—the majority correctly held that the Growers failed to state a cognizable takings claim. Although the Access Regulation does not have a contemplated end-date, it does not grant union organizers a “permanent and continuous right to pass to and fro” on the Growers’ property. The regulation makes clear that the union organizers may not, whenever they desire, enter the employers’ premises to speak with employees about unionization. Only in specific circumstances may they take advantage of the limited access provided by the Access Regulation. Given that the Access Regulation does not authorize “continuous” access to the Growers’ property, it likewise does not result in a wholesale deprivation of their right to exclude and thus does not effect a Fifth Amendment taking. And unlike the raisin farmers in Horne v. Department of Agriculture, who were forced to transfer over half of their annual crops to the federal government, the Growers here were not stripped of their “rights to possess, use and dispose of” their property.2 576 U.S. 350, 135 S. Ct. 2419, 2428, 192 3.C.b Packet Pg. 48 Attachment: AttachmentB--DenialofRehearing (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) Cedar Point Nursery v. Shiroma, 956 F.3d 1162 (2020) 170 Lab.Cas. P 62,038, 20 Cal. Daily Op. Serv. 3747, 2020 Daily Journal D.A.R. 3959 © 2021 Thomson Reuters. No claim to original U.S. Government Works.3 L.Ed.2d 388 (2015) (quoting Loretto, 458 U.S. at 435, 102 S.Ct. 3164). The dissent also asserts that the majority opinion creates a circuit split with the Federal Circuit's decision in Hendler v. United States, 952 F.2d 1364 (Fed. Cir. 1991). Not so. In that case, the government installed wells on the plaintiffs’ property and subsequently “entered upon [their] land from time to time, without permission, for purposes of” maintaining them. Id. at 1377. The court reasoned that “[t]hese surveillance wells [were] at least as ‘permanent’ in this sense as the CATV equipment in Loretto, which comprised *1165 only a few cables attached by screws and nails and a box attached by bolts.” Id. (citation omitted). And even after installing the physical wells, the government routinely entered the plaintiffs’ land “at its convenience,” as if it had “acquired an easement not unlike that claimed in” Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979). Hendler, 952 F.2d at 1378. The resulting situation was a complete “taking of the plaintiffs’ right to exclude,” so long as the wells remained on the property. Id. As in Nollan and Kaiser Aetna, the property owners retained no ability to control when and where the government trespassed upon their property. Id. Here, unlike in Hendler, the Board has not erected a permanent physical structure on the Growers’ property, and the union organizers are excludable from the property unless they are authorized to enter under the terms of the Access Regulation. The court's opinion thus does not create a circuit split. * * * The court's majority opinion correctly held that the Growers have not suffered a “permanent and continuous” loss of their right to exclude the public from their property. Nollan, 483 U.S. at 832, 107 S.Ct. 3141. They have thus not suffered a taking in violation of the Fifth Amendment. Neither the panel majority nor the district court erred in so holding. For the reasons discussed above and in the majority opinion, I concur in the court's decision not to rehear this case en banc. IKUTA, Circuit Judge, joined by CALLAHAN, R. NELSON, BADE, COLLINS, BRESS, BUMATAY, and VANDYKE, Circuit Judges, dissenting from denial of rehearing en banc: Once again, the Ninth Circuit endorses the taking of property without just compensation. See Horne v. U.S. Dep't of Agric., 750 F.3d 1128 (9th Cir. 2014), rev'd sub nom. Horne v. Dep't of Agric., 576 U.S. 350, 135 S. Ct. 2419, 192 L.Ed.2d 388 (2015). California property law and Supreme Court precedent make clear that an easement is private property protected by the Takings Clause. See, e.g., L.A. Terminal Land Co. v. Muir, 136 Cal. 36, 48, 68 P. 308 (1902); Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 831, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987). In opposition to this precedent, the majority concludes there is no taking because the state's appropriation of an easement is not a “permanent physical occupation.” Cedar Point Nursery v. Shiroma, 923 F.3d 524, 531–34 (9th Cir. 2019). This decision not only contradicts Supreme Court precedent but also causes a circuit split. See Hendler v. United States, 952 F.2d 1364, 1377–78 (Fed. Cir. 1991). We should have taken this case en banc so that the Supreme Court will not have to correct us again. I The property owners and plaintiffs in this case are Cedar Point Nursery, a strawberry nursery, and Fowler Packing Company, a shipper of table grapes and citrus. Both companies employ full-time workers and seasonal workers, none of whom live on company property. The companies abruptly became aware that union organizers claimed a right to trespass on their property in the summer of 2015. According to Cedar Point, early one morning near the end of the strawberry harvesting season, union organizers entered Cedar Point's property and trespassed across it to the trim sheds, where hundreds of employees were preparing strawberry plants. The union organizers disrupted work by moving through the trim sheds with bullhorns, distracting and intimidating the workers. Fowler, on the *1166 other hand, was able to avoid such an intrusion; when the union organizers attempted to invade Fowler's property, Fowler blocked them. After these clashes, union organizers filed complaints against both Cedar Point and Fowler with the California Agricultural Labor Relations Board (the Board), alleging unfair labor practices. The union organizers claimed that they had a statutory right to enter Cedar Point's and Fowler's property based on the Agricultural Labor Relations Act (the Act), Cal. Lab. Code §§ 1140–1166.3. The Act, enacted in 1975, substantially tracks the language of the National Labor 3.C.b Packet Pg. 49 Attachment: AttachmentB--DenialofRehearing (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) Cedar Point Nursery v. Shiroma, 956 F.3d 1162 (2020) 170 Lab.Cas. P 62,038, 20 Cal. Daily Op. Serv. 3747, 2020 Daily Journal D.A.R. 3959 © 2021 Thomson Reuters. No claim to original U.S. Government Works.4 Relations Act by giving employees the right to concerted action. Compare Cal. Lab. Code § 1152 with 29 U.S.C. § 157. The Act does not authorize non-employees to enter private property. See, e.g., Cal. Lab. Code § 1152. But shortly after the Act went into effect, the Board promulgated an emergency regulation to give union organizers access to the private property of agricultural employers. See Cal. Code Regs. tit. 8, § 20900(e). This emergency regulation is sometimes referred to as the “Access Regulation.” In promulgating the regulation, the Board relied on a Supreme Court opinion, N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), which upheld an employer's right to exclude nonemployee union organizers from the employer's private property but also created an exception: the employer's property right must “yield to the extent needed to permit communication of information on the right to organize” when “the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them,” id. at 113, 76 S.Ct. 679; see Agric. Labor Relations Bd. v. Superior Court, 16 Cal. 3d 392, 414, 128 Cal.Rptr. 183, 546 P.2d 687 (1976) (the Board “predicated its access regulation” on Babcock & Wilcox).1 The current version of the Access Regulation is not limited to situations where union organizers do not have reasonable access to employees.2 Rather, it gives union organizers a permanent right to access “the premises of an agricultural employer for the purposes of meeting and talking with employees and soliciting their support.” Cal. Code Regs. tit. 8, § 20900(e). Union organizers may enter the private property for one hour before the start of work, one hour after the completion of work, and one hour during the lunch *1167 break, for 120 days during the calendar year. Cal. Code Regs. tit. 8, § 20900(e)(3). Under the regulation, two organizers may enter the owner's property for every 15 employees. Cal. Code Regs. tit. 8, § 20900(e)(4)(A). The Access Regulation prevents the employer from interfering with the organizers’ full access to the property, Cal. Code Regs. tit. 8, § 20900(e) (5)(C), and prohibits the union organizers only from injuring crops or machinery, interfering with the employees when they are boarding buses, and similar disruptive behaviors, Cal. Code Regs. tit. 8, § 20900(e)(4)(C). Cedar Point and Fowler filed this action against members of the Board after union organizers entered (or attempted to enter) their properties pursuant to the Access Regulation, alleging that “the access regulation ... creates an easement for union organizers to enter ... private property without consent or compensation,” causing an “unconstitutional taking.” Cedar Point and Fowler also allege they have reason to believe that union organizers will invoke their right under the Access Regulation to enter their properties in the near future. If not for the regulation, Cedar Point and Fowler allege they would exclude union organizers from their properties. Therefore, they seek a declaration that the Access Regulation is unconstitutional as applied to them and an order enjoining the Board from enforcing the regulation. The district court dismissed the complaint on the ground that the plaintiffs failed to state a plausible Takings Clause claim. See Cedar Point Nursery v. Gould, 2016 WL 3549408, at *5 (E.D. Cal. June 29, 2016). The plaintiffs appealed, and the panel affirmed, over Judge Leavy's dissent. See Cedar Point Nursery v. Shiroma, 923 F.3d 524, 536 (9th Cir. 2019). The majority first acknowledged that Cedar Point and Fowler “allege that the access regulation, as applied to them, effects a Fifth Amendment taking by creating an easement that allows union organizers to enter their property ‘without consent or compensation.’ ” Id. at 531. But instead of addressing this takings claim, the majority held (without explanation) that the Access Regulation does not effect a “classic taking in which government directly appropriates private property.” Id. (citation omitted). In light of this conclusion, the majority considered whether the Access Regulation fell within the category of regulatory takings where “the government requires an owner to suffer a permanent physical invasion.” Id. (citation omitted). The majority held that the plaintiffs had not suffered such a regulatory taking, because, unlike in Nollan, union organizers were not allowed to traverse the plaintiffs’ property “24 hours a day, 365 days a year.” Id. at 532. Rather, according to the majority, the Access Regulation merely affected the plaintiffs’ “right to exclude,” which is only “ ‘one strand of the bundle’ of property rights.” Id. at 533. Accordingly, the majority ruled that the plaintiffs had “not suffered a permanent physical invasion that would constitute a per se taking.” Id. at 532.3 In reaching this conclusion, the majority fundamentally misunderstood the nature of the property rights at issue, and how California had taken them. II 3.C.b Packet Pg. 50 Attachment: AttachmentB--DenialofRehearing (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) Cedar Point Nursery v. Shiroma, 956 F.3d 1162 (2020) 170 Lab.Cas. P 62,038, 20 Cal. Daily Op. Serv. 3747, 2020 Daily Journal D.A.R. 3959 © 2021 Thomson Reuters. No claim to original U.S. Government Works.5 Under long-established Takings Clause principles, the analysis of the plaintiffs’ complaint should proceed as follows. First, property rights are determined by reference *1168 to state law—here, California. Second, California law has long recognized that easements are a traditional form of private property. Third, the Access Regulation appropriates easements from property owners and transfers them to union organizers. Finally, consistent with Supreme Court precedent, the appropriation of an easement constitutes a taking of “private property” and therefore requires “just compensation.” U.S. Const. amend. V. A Some background is in order. “Property rights are created by the State.” Palazzolo v. Rhode Island, 533 U.S. 606, 626, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001). As such, “the existence of a property interest is determined by reference to ‘existing rules or understandings that stem from ... source[s] such as state law.’ ” Phillips v. Wash. Legal Found., 524 U.S. 156, 164, 118 S.Ct. 1925, 141 L.Ed.2d 174 (1998) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)); accord United States v. Causby, 328 U.S. 256, 266, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946). Although property rights are defined by state law, there are limits on a state's ability to alter traditional understandings of property through legislation. See Palazzolo, 533 U.S. at 627–28, 121 S.Ct. 2448; Phillips, 524 U.S. at 167, 118 S.Ct. 1925. “[A]s to confiscatory regulations (as opposed to those regulating the use of property), a State may not sidestep the Takings Clause by disavowing traditional property interests long recognized under state law.” Phillips, 524 U.S. at 167, 118 S.Ct. 1925. That is, a state may not, “by ipse dixit, transform private property into public property without compensation.” Palazzolo, 533 U.S. at 628, 121 S.Ct. 2448 (quoting Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980)). Thus, a proper takings analysis begins with a determination of whether there is a traditional property interest at stake. See Phillips, 524 U.S. at 164, 118 S.Ct. 1925; Webb's Fabulous Pharmacies, 449 U.S. at 162, 101 S.Ct. 446. Here, a court must look to California law to make such a determination. See Palazzolo, 533 U.S. at 628, 121 S.Ct. 2448; Phillips, 524 U.S. at 164, 118 S.Ct. 1925. B For well over a century, California has recognized that easements are a type of real property. See, e.g., L.A. Terminal Land Co. v. Muir, 136 Cal. 36, 48, 68 P. 308 (1902). “An easement is generally defined as an ‘interest in land created by grant or agreement, express or implied, which confers a right upon the owner thereof to some profit, benefit, dominion, or lawful use out of or over the estate of another.’ ” Mosier v. Mead, 45 Cal. 2d 629, 632, 290 P.2d 495 (1955) (quoting Muir, 136 Cal. at 48, 68 P. 308). “An affirmative easement gives its owner a right to do something on the land of another, such as a right to pass over the other person's land.” 6 Miller & Starr, California Real Estate § 15:9 (4th ed. 2019); accord Wolford v. Thomas, 190 Cal. App. 3d 347, 354, 235 Cal.Rptr. 422 (1987); Balestra v. Button, 54 Cal. App. 2d 192, 197, 128 P.2d 816 (1942). One type of affirmative easement recognized under California law is an easement in gross. See Balestra, 54 Cal. App. 2d at 197, 128 P.2d 816. An easement in gross is a “personal interest in real estate of another.” Id. (citation omitted). It may be “granted and held though not attached to land.” Callahan v. Martin, 3 Cal. 2d 110, 121, 43 P.2d 788 (1935) (citation omitted); accord Restatement (Third) Property § 1.5(2) (2000). The Civil Code of California provides examples of easements in gross, *1169 including “[t]he right to pasture, and of fishing and taking game,” “[t]he right of a seat in church,” “[t]he right of burial,” “[t]he right of taking rents and tolls,” “[t]he right of way,” and “[t]he right of taking water, wood, minerals, or other things.” Gerhard v. Stephens, 68 Cal. 2d 864, 880 n.11, 69 Cal.Rptr. 612, 442 P.2d 692 (1968) (quoting Cal. Civ. Code § 802). Thus, as the Civil Code's examples indicate, the owner of an easement in gross may enter the land of another for the purpose of taking some action. There is a “long line of California cases holding that an easement in gross is real property.” Balestra, 54 Cal. App. 2d at 197, 128 P.2d 816. In California, the owner of such an easement may sell or transfer it like any other form of property. See Cal. Civ. Code § 1044; Callahan, 3 Cal. 2d at 121, 43 P.2d 788; LeDeit v. Ehlert, 205 Cal. App. 2d 154, 166, 22 Cal.Rptr. 747 (1962) (“In California an easement in gross is both assignable and inheritable unless restricted by proper language to certain individuals.”). By the same token, the state's appropriation of an easement in gross is a taking of real property, requiring just compensation. 3.C.b Packet Pg. 51 Attachment: AttachmentB--DenialofRehearing (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) Cedar Point Nursery v. Shiroma, 956 F.3d 1162 (2020) 170 Lab.Cas. P 62,038, 20 Cal. Daily Op. Serv. 3747, 2020 Daily Journal D.A.R. 3959 © 2021 Thomson Reuters. No claim to original U.S. Government Works.6 C The U.S. Supreme Court has long recognized that an easement in gross is a traditional form of private property that cannot be taken without just compensation. Almost a century ago, the Court held that plaintiffs had sufficiently alleged “that a servitude ha[d] been imposed” on their land,4 resulting in an “appropriation of property for which compensation should be made,” based on allegations that the federal government “set up heavy coast defence guns,” intended to fire across the plaintiffs’ land, and had done so on occasion “even if not frequently.” Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 329–30, 43 S.Ct. 135, 67 L.Ed. 287 (1922) (citation omitted).5 Some twenty years later, the Court again held that an “easement was taken” based on “frequent and regular flights of army and navy aircraft over respondents’ land at low altitudes.” Causby, 328 U.S. at 258, 267, 66 S.Ct. 1062. The Court first reasoned that under North Carolina law, a landowner had a property right “to the immediate reaches of the superadjacent airspace.” Id. at 266, 66 S.Ct. 1062. Therefore, invasions of that property “are in the same category as invasions of the surface.” Id. at 265, 66 S.Ct. 1062. Because the government's flights were within the airspace owned by the landowners, the Court concluded that an “easement was taken” and the government owed the landowners just compensation. Id. at 267, 66 S.Ct. 1062. The Court reached this conclusion even though more fact-finding was necessary given that the trial court's “findings of fact contain[ed] no precise description as to [the] nature” of the easement. Id. The easement was “not described in terms of frequency of flight, permissible altitude, or type of airplane.” Id. “Nor [was] there a *1170 finding as to whether the easement taken was temporary or permanent.” Id. Because “an accurate description of the property taken is essential,” the Court remanded for additional findings of fact to determine the appropriate amount of the award of compensation. Id. at 267–68, 66 S.Ct. 1062. In short, once an easement is taken, the remaining question is the amount of just compensation, which is determined based on the nature of the easement. Over three decades later, the Court held that there was a taking of private property when the government claimed that a marina owner was required to open its lagoon to the public on the ground that the lagoon was subject to a “navigational servitude.” Kaiser Aetna v. United States, 444 U.S. 164, 170, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979). The Court explained that the government could not open the lagoon to the public “without invoking its eminent domain power and paying just compensation” because there is a taking even if the government “physically invades only an easement in property.” Id. at 180, 100 S.Ct. 383 (citing Causby, 328 U.S. at 265, 66 S.Ct. 1062; Portsmouth Harbor, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287). Although Kaiser Aetna referred to the government's imposition of a navigational servitude as a taking “under the logic” of Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), as well as “an actual physical invasion” comparable to the traditional taking of a fee interest, Kaiser Aetna, 444 U.S. at 178, 180, 100 S.Ct. 383, the Court has subsequently construed Kaiser Aetna as holding that there is a taking when the government imposes a “navigational servitude on [a] marina created and rendered navigable at private expense,” Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). To the extent there was any doubt as to whether the appropriation of an easement constitutes a taking, it was dispelled by Nollan.6 There, the Court stated that if California were to require landowners to “make an easement across their beachfront available to the public,” there is “no doubt there would ... be[ ] a taking.” Nollan, 483 U.S. at 831, 107 S.Ct. 3141. According to the Court, “[t]o say that the appropriation of a public easement across a landowner's premises does not constitute the taking of a property interest but rather ... ‘a mere restriction on its use,’ is to use words in a manner that deprives them of all their ordinary meaning.” Id. (citation omitted).7 The Federal Circuit's decision in Hendler v. United States, 952 F.2d 1364 (Fed. Cir. 1991), is in accord with these precedents. There, the Federal Circuit held that the federal government had acquired an uncompensated easement when “Government vehicles and equipment entered upon plaintiffs’ land from time to time, without permission, for purposes of installing and servicing ... various [groundwater] wells.” Id. at 1377.8 Entry onto private property, *1171 “even though temporally intermittent,” effected a taking because “the concept of permanent physical occupation does not require that in every instance the occupation be exclusive, or continuous and uninterrupted.” Id. It was sufficient that the vehicles “entered upon [the] plaintiffs’ land from time to time,” “remained on the land for whatever duration was necessary to conduct their activities, and then left, only to return again when the Government desired.” Id. The Federal Circuit reasoned that Nollan and Kaiser Aetna left “little doubt” that “dr[iving] ... upon [the] plaintiffs’ land for the 3.C.b Packet Pg. 52 Attachment: AttachmentB--DenialofRehearing (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) Cedar Point Nursery v. Shiroma, 956 F.3d 1162 (2020) 170 Lab.Cas. P 62,038, 20 Cal. Daily Op. Serv. 3747, 2020 Daily Journal D.A.R. 3959 © 2021 Thomson Reuters. No claim to original U.S. Government Works.7 purpose of installing and periodically servicing and obtaining information from ... various wells,” though “temporally intermittent,” constituted a taking. Id. at 1377–78. In sum, the Supreme Court has repeatedly, and consistently, recognized that the appropriation of an easement that allows for entry onto private property constitutes a taking of property. And the Court has expressly recognized that taking an easement in California is, by definition, an “appropriation” of “property,” not a “mere restriction” on use. Nollan, 483 U.S. at 831, 107 S.Ct. 3141 (citation omitted). Indeed, “[t]he clearest sort of taking occurs when the government encroaches upon or occupies private land for its own proposed use.” Palazzolo, 533 U.S. at 617, 121 S.Ct. 2448. The Federal Circuit has recognized this as well. See Hendler, 952 F.2d at 1378. Only the Ninth Circuit refuses to acknowledge that taking an easement is a taking. D Here, the plaintiffs have plausibly alleged that California took their property—specifically, easements in gross—by means of the Access Regulation. As the Court has explained, “the classic taking is one in which the government directly appropriates private property for its own use.” Horne v. Dep't of Agric., 576 U.S. 350, 135 S. Ct. 2419, 2425, 192 L.Ed.2d 388 (2015) (cleaned up). “[I]n the case of real property, such an appropriation is a per se taking that requires just compensation.” Id. at 2426. Thus, the sole question is whether the government has “appropriate[d] private property for its own use.” Id. at 2425. If so, there “is a per se taking that requires just compensation.” Id. at 2426. The right to enter onto the land of another to take some action is the epitome of an easement in gross. See, e.g., Cal. Civ. Code § 802; Nollan, 483 U.S. at 832 & n.1, 107 S.Ct. 3141; Buehler v. Or.-Wash. Plywood Corp., 17 Cal. 3d 520, 527, 131 Cal.Rptr. 394, 551 P.2d 1226 (1976); LeDeit, 205 Cal. App. 2d at 159, 165–67, 22 Cal.Rptr. 747. The Access Regulation gives multiple union organizers the right to enter onto employers’ private property to “meet[ ] and talk[ ] with employees and solicit[ ] their support” for three hours a day, 120 days a year. Cal. Code Regs. tit. 8, § 20900(e). The Access Regulation limits a union organizer's rights to enter private property to some extent, see Cal. Code Reg. tit. 8, § 20900(e), but that does not detract from the conclusion that it appropriates easements; indeed, restrictions are a quintessential feature of all easements.9 *1172 Accordingly, we have the “classic taking” described in Horne. 135 S. Ct. at 2425. It is irrelevant that the property taken is an easement —as opposed to some other type of real or personal property —because the Takings Clause “protects ‘private property’ without any distinction between different types.” Id. at 2426. Because California has “appropriate[d] private property for its own use,” there has been “a per se taking that requires compensation.” Id. at 2425–26. No additional showing is required. See id. Thus, the majority errs in concluding that the plaintiffs fail to plausibly allege that their rights under the Takings Clause were violated. See Cedar Point, 923 F.3d at 531–33. III The majority's failure to recognize that the plaintiffs have stated a viable takings claim is based on several fundamental errors. A First, the majority ignores the plaintiffs’ claim that California has directly appropriated their property and instead suggests that the plaintiffs’ claim must fall into one of “three categories of regulatory action[s]” which are “functionally equivalent to the classic taking.” Id. at 531 (quoting Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005)). The three categories identified by the majority are: (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,” and (3) “the remainder of regulatory actions, which are governed by the standards set forth in Penn Central Transportation Co. v. New York City.” Id. (citations omitted). The majority then focuses on the first of these three categories of “regulatory actions,” characterized as a “permanent physical invasion.” See id. at 531–34, 125 S.Ct. 2074. This re-characterization of the plaintiffs’ claims is wrong on its face. The plaintiffs’ complaint expressly alleges that they have suffered what the majority refers to as a “classic taking,” namely that “the access regulation ... creates an easement for union organizers to enter ... private property without consent or compensation,” causing an “unconstitutional taking.” As the Supreme Court has explained, separate and apart from 3.C.b Packet Pg. 53 Attachment: AttachmentB--DenialofRehearing (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) Cedar Point Nursery v. Shiroma, 956 F.3d 1162 (2020) 170 Lab.Cas. P 62,038, 20 Cal. Daily Op. Serv. 3747, 2020 Daily Journal D.A.R. 3959 © 2021 Thomson Reuters. No claim to original U.S. Government Works.8 any categories of regulatory takings, “[t]he paradigmatic taking requiring just compensation is a direct government appropriation ... of private property.” Lingle, 544 U.S. at 537, 125 S.Ct. 2074. Thus, the majority errs by attempting to rewrite the plaintiffs’ claim that California has directly appropriated their property into a claim that regulatory activity has gone too far by causing a permanent occupation of their land. See Cedar Point, 923 F.3d at 533–34. B The majority also errs in concluding that the Access Regulation does not effect a taking because it “does not grant union organizers a ‘permanent and continuous right to pass to and fro’ such that the [plaintiffs’] property ‘may continuously be traversed.’ ” Id. at 532. There is no support for the majority's claim that the government can appropriate easements free of charge so long as the easements do not allow for access “24 hours a day, 365 days a year.” Id. First, an easement need not allow for a “continuous physical occupation” for it to be taken. It is well established that an easement holder's right to go onto property *1173 of another exists regardless whether the easement holder permanently occupies the property. Loretto itself recognizes that Portsmouth Harbor, Causby, and Kaiser Aetna—cases in which there was no permanent physical occupation— stand for the proposition that the government must pay compensation even if it “physically invades only an easement in property.” Loretto, 458 U.S. at 433, 102 S.Ct. 3164 (citation omitted). And Loretto recognizes that “[t]he one incontestable case for compensation (short of formal expropriation) seems to occur when the government deliberately brings it about that its agents, or the public at large, regularly use ... a thing [such as an easement]10 which ... was understood to be under private ownership.” Id. at 427 n.5, 102 S.Ct. 3164 (cleaned up) (quoting Frank I. Michelman, Property, Utility & Fairness: Comments on the Ethical Foundations of ‘Just Compensation’ Law, 80 Harv. L. Rev. 1165, 1184 (1967)). Similarly, Nollan held that imposing an easement across a property owner's beachfront property effectively gave rise to a “permanent physical occupation,” as in Loretto, “even though no particular individual [was] permitted to station himself permanently upon the premises.” 483 U.S. at 832, 107 S.Ct. 3141. And, as the dissent in Nollan pointed out, “public passage for a portion of the year would either be impossible or would not occur on appellant's property” due to “high-tide line shifts throughout the year.” Id. at 854, 107 S.Ct. 3141 (Brennan, J., dissenting). Put simply, the Supreme Court has never held that a government has free rein to take easements, without paying for them, so long as the easements do not allow for access “24 hours a day, 365 days a year.” Cedar Point, 923 F.3d at 532. Thus, the majority errs by engrafting a “continuous use” requirement onto the Takings Clause. Second, an easement need not be “permanent” for it to be taken, contrary to the majority's repeated invocation of that word. See Cedar Point, 923 F.3d at 531–34. In Causby, the Court made clear that there was a taking even though the trial court had not yet determined whether the “easement taken [was] a permanent or a temporary one.” 328 U.S. at 268, 66 S.Ct. 1062; see also Ark. Game & Fish Comm'n v. United States, 568 U.S. 23, 33, 133 S.Ct. 511, 184 L.Ed.2d 417 (2012) (“[W]e have rejected the argument that government action must be permanent to qualify as a taking.”); First English Evangelical Church of Glendale v. L.A. Cty., Cal., 482 U.S. 304, 329, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987) (“A temporary interference with an owner's use of his property may constitute a taking for which the Constitution requires that compensation be paid.”). Thus, there is no basis for the majority's conclusion that the government can take easements without paying compensation so long as the easements do not meet the majority's definition of “permanent.” In holding that the plaintiffs’ claim fails because there is no “permanent physical occupation,” the majority creates a circuit split by contradicting the Federal Circuit's decision in Hendler. The Federal Circuit's holding that activity involving “temporally intermittent” intrusions onto private property *1174 effects a taking, Hendler, 952 F.2d at 1377, is inconsistent with the majority's view that there is no taking of an easement unless “random members of the public [can] unpredictably traverse the[ ] property 24 hours a day, 365 days a year,” Cedar Point, 923 F.3d at 532.11 C Finally, the majority blunders in relying on PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), to support its conclusion that the Access Regulation does not effect a taking, see Cedar Point, 923 F.3d at 531–32. In PruneYard, the appellants were owners of “a large commercial complex that cover[ed] several city blocks, contain[ed] numerous separate business establishments, and [was] open to the public at large.” 447 U.S. at 83, 100 S.Ct. 3.C.b Packet Pg. 54 Attachment: AttachmentB--DenialofRehearing (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) Cedar Point Nursery v. Shiroma, 956 F.3d 1162 (2020) 170 Lab.Cas. P 62,038, 20 Cal. Daily Op. Serv. 3747, 2020 Daily Journal D.A.R. 3959 © 2021 Thomson Reuters. No claim to original U.S. Government Works.9 2035. The owners ordered a group of high school students who were distributing literature and soliciting signatures for a petition to leave the premises. Id. at 77, 100 S.Ct. 2035. The California Supreme Court held that the state constitution protected speech and petitioning, even at privately owned shopping centers, and therefore concluded that the students were entitled to conduct their activity on the private property. Id. at 78, 100 S.Ct. 2035 (citing Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d 899, 910, 153 Cal.Rptr. 854, 592 P.2d 341 (1979)). The U.S. Supreme Court affirmed, characterizing the state constitutional requirement as a regulatory restriction that did not go so far as to constitute a taking. Id. at 82–85, 100 S.Ct. 2035. According to the majority, PruneYard “contradict[s]” the plaintiffs’ claim that the Access Regulation appropriates their property, because PruneYard involved restrictions on a property owner's “right to exclude” individuals from property and the Court held that there was no taking. Cedar Point, 923 F.3d at 531–32. This reliance on PruneYard is mistaken. PruneYard did not involve a state law that gave third parties access to otherwise private property; rather, the owner in PruneYard “had already opened his property to the general public.” Nollan, 483 U.S. at 832 n.1, 107 S.Ct. 3141. Indeed, PruneYard framed the issue as “whether state constitutional provisions, which permit individuals to exercise free speech and petition rights on the property of a privately owned shopping center to which the public is invited, violate the shopping center owner's property rights under the Fifth ... Amendment.” 447 U.S. at 76–77, 100 S.Ct. 2035 (emphasis added). Given that the shopping center was open to the public, it is not surprising that the parties did not argue, and the Supreme Court did not consider, whether the state had appropriated an easement by giving members of the public the right to exercise their “state-protected rights of free expression and petition” on the shopping center property. Id. at 83, 100 S.Ct. 2035. The Supreme Court subsequently made clear that PruneYard does not provide guidance for analyzing a governmental appropriation of an easement. Dolan v. City of Tigard distinguished the imposition of a permanent recreational easement from the situation in PruneYard, where the property was already open to the public and “attracted more than 25,000 daily patrons.” *1175 512 U.S. 374, 394, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994); see also Nollan, 483 U.S. at 832 n.1, 107 S.Ct. 3141 (distinguishing the appropriation of a beachfront easement from the situation in PruneYard where the owner “had already opened his property to the general public,” individuals were not given permanent access to the property, and there was no “classic right-of-way easement”).12 And, as Horne made clear, “limiting a property owner's right to exclude certain speakers from an already publicly accessible shopping center did not take the owner's property.” 135 S. Ct. at 2429 (citing PruneYard, 447 U.S. at 83, 100 S.Ct. 2035). Here, unlike in PruneYard, the plaintiffs’ property is not “open to the public at large,” 447 U.S. at 83, 100 S.Ct. 2035, and the plaintiffs expressly alleged that the Access Regulation appropriates easements. California has not merely regulated the “right to exclude” certain persons from property that is open to the public based on their speech, as in PruneYard; rather, California has appropriated a state-defined property right. Therefore, PruneYard is simply inapplicable: The majority's fails to recognize that PruneYard did not involve the taking of easements but rather a restriction on a landowner's ability to prevent speech on land that was already open to the public. IV “That rights in property are basic civil rights has long been recognized,” Lynch v. Household Fin. Corp., 405 U.S. 538, 552, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), and like other civil rights must be zealously protected from infringement by government. Here, the plaintiffs allege that California has appropriated easements and thus taken valuable property rights protected by the Takings Clause. To say, as the majority does, that there has not been a taking, “is to use words in a manner that deprives them of all their ordinary meaning.” Nollan, 483 U.S. at 831, 107 S.Ct. 3141. By failing to give fair consideration to the plaintiffs’ actual claims, the majority creates a circuit split, disregards binding Supreme Court precedent, and deprives property owners of their constitutional rights. We should have taken this case en banc to rectify this error. All Citations 956 F.3d 1162 (Mem), 170 Lab.Cas. P 62,038, 20 Cal. Daily Op. Serv. 3747, 2020 Daily Journal D.A.R. 3959 3.C.b Packet Pg. 55 Attachment: AttachmentB--DenialofRehearing (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) Cedar Point Nursery v. Shiroma, 956 F.3d 1162 (2020) 170 Lab.Cas. P 62,038, 20 Cal. Daily Op. Serv. 3747, 2020 Daily Journal D.A.R. 3959 © 2021 Thomson Reuters. No claim to original U.S. Government Works.10 Footnotes 1 Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 832, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987). 2 The government's raisin-seizure was a per se taking under Loretto because the growers “lost the entire ‘bundle’ of property rights in the appropriated raisins—‘the rights to possess, use and dispose of’ them—with the exception of the speculative hope that some residual proceeds may be left when the Government is done with the raisins and has deducted the expenses of implementing all aspects of the marketing order.” Horne, 135 S. Ct. at 2428 (internal citation omitted). “Actual raisins [were] transferred from the growers to the Government” and “[t]itle to the raisins passe[d] to the Raisin Committee.” Id. No such transfer happened here. 1 At the time the California regulation was promulgated, agricultural workers often lived on their employer's property and were cut off from the outside world, so “unions seeking to organize agricultural employees d[id] not have available alternative channels of effective communication.” Cal. Code Regs. tit. 8, § 20900(c). The agricultural industry has changed dramatically in the past 40 years, however. “Today, all but a relative handful of workers obtain housing off-farm.” Brief of Amicus Curiae Cal. Farm Bureau Fed'n at 8, Cedar Point v. Shiroma, 923 F.3d 524 (9th Cir. 2019) (No. 16-16321) (quoting Don Villarejo, Cal. Inst. for Rural Studies, The Status of Farm Labor Housing 5 (Mar. 6, 2015), https://bit.ly/36tUs7N). Moreover, modern technology gives union organizers multiple means of contacting employees. See id. at 9. Given the Supreme Court's more recent narrowing construction of Babcock & Wilcox as applying only to “rare case[s]” where the “inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels,” Lechmere, Inc. v. N.L.R.B., 502 U.S. 527, 537, 112 S.Ct. 841, 117 L.Ed.2d 79 (1992) (citation omitted), the decades-old justifications for the Access Regulation are questionable. 2 As Judge Leavy points out in his dissent, Babcock & Wilcox does not undermine the plaintiffs’ takings claim because their employees are accessible to union organizers through reasonable means of communication. Cedar Point, 923 F.3d at 539 (Leavy, J., dissenting). 3 While suggesting that the Access Regulation might fall within a category of regulatory takings governed by the standards set out in Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), the majority did not address this issue because the plaintiffs had not raised it. Cedar Point, 923 F.3d at 533–34. 4 A “servitude” refers to “encumbrance[s] consisting in a right to the limited use of a piece of land or other immovable property without the possession of it” and “include[s] easements.” Servitude, Black's Law Dictionary 1577 (10th ed. 2014). 5 Contrary to the concurrence in the denial of the petition for rehearing en banc (hereinafter, the “Concurrence”), Portsmouth Harbor did not focus on whether the servitude “result[ed] in depriving the owner of all profitable use.” Concurrence at 1163. Rather, the government's intent to use the plaintiffs’ land and its overt acts in doing so were enough to create a servitude. 260 U.S. at 329–30, 43 S.Ct. 135; see also Causby, 328 U.S. at 261–62, 66 S.Ct. 1062 (holding that there is “no material difference” between a case where an owner is prevented from “us[ing] th[e] land for any purpose” and one where the “use of the land [is] not completely destroyed”). 6 Nollan and Dolan v. City of Tigard upheld the government's right to “exact some forms of dedication as a condition for the grant of a building permit.” Dolan v. City of Tigard, 512 U.S. 374, 385–86, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). But the “authority of state and local governments to engage in land use planning,” id. at 384, 114 S.Ct. 2309, is not at issue here. 7 A treatise on which Nollan relied, see 483 U.S. at 831, 107 S.Ct. 3141, explains that both existing easements and “new easements carved out of the unencumbered fee” are “subject to the power of eminent domain,” and “[a]ll of these interests must be paid for when the property is acquired through eminent domain,” 2 Julius L. Sackman, Nichols on Eminent Domain § 5.01 (3rd ed.) (emphasis added). 8 In a different section of the opinion, the Federal Circuit also concluded that placing the wells on the plaintiffs’ land gave rise to an “occupancy ... within the degree necessary to make out a taking.” Hendler, 952 F.2d at 1377; compare id. at 1375–77 (analyzing the government's placement of wells on the plaintiffs’ property) with id. at 1377–78 (analyzing the government's entry onto the plaintiffs’ land to install and service the wells). 9 See, e.g., Cal. Civ. Code § 806 (extent of an easement is “determined by the terms of the grant, or the nature of the enjoyment by which it was acquired”); Youngstown Steel Prods. Baker v. Pierce, 100 Cal. App. 2d 224, 226, 223 P.2d 286 (1950) (“No authority need be cited for the well-known rule that the owner of a dominant tenement must use his easement and rights in such a way as to impose as slight a burden as possible on the servient tenement.”). 10 The law review article from which Loretto quotes makes clear that the word “ ‘thing’ signifies any discrete, identifiable (even if incorporeal) vehicle of economic value which one can conceive of as being owned,” including “easements,” and that these “things” “can be affirmatively expropriated by public authority in a manner analogous to its ‘taking’ of a corporeal thing.” Michelman, supra at 1184 n.37. That is, even though easements “[h]ave a conceptual existence but no physical 3.C.b Packet Pg. 56 Attachment: AttachmentB--DenialofRehearing (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) Cedar Point Nursery v. Shiroma, 956 F.3d 1162 (2020) 170 Lab.Cas. P 62,038, 20 Cal. Daily Op. Serv. 3747, 2020 Daily Journal D.A.R. 3959 © 2021 Thomson Reuters. No claim to original U.S. Government Works.11 existence,” Incorporeal, Black's Law Dictionary 884 (10th ed. 2014), they can be affirmatively expropriated (i.e., taken) just like a piece of land or an object. 11 As previously explained, see supra at 1170-71 n.8, Hendler analyzed the entry of the federal officials onto the land separately from the government's installation of the wells. Compare 952 F.2d at 1375–77 (analyzing the government's placement of wells on the plaintiffs’ property), with id. at 1377–78 (analyzing the government's entry onto the plaintiffs’ land to install and service the wells). Accordingly, the Concurrence errs in attempting to distinguish Hendler on the ground that the Federal Circuit was considering only the permanent trespass caused by the installation of the wells. Cf. Concurrence at 1164-65. 12 The word “permanent” has carried a variety of different meanings in takings jurisprudence, and its meaning has changed over time. See Causby, 328 U.S. at 267, 66 S.Ct. 1062 (referring to “temporary” and “permanent” easements); Loretto, 458 U.S. at 421, 102 S.Ct. 3164 (referring to a “permanent physical occupation”); Hendler, 952 F.2d at 1376 (“ ‘[P]ermanent’ does not mean forever, or anything like it”); Ark. Game & Fish Comm'n, 568 U.S. at 33, 133 S.Ct. 511 (rejecting the “argument that government action must be permanent to qualify as a taking”); Cedar Point, 923 F.3d at 533 (referring to a “permanent per se taking”). But there has been no change in the Supreme Court's view that the taking of an easement, whether “temporary” or “permanent,” constitutes a taking. Causby, 328 U.S. at 267, 66 S.Ct. 1062. End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. 3.C.b Packet Pg. 57 Attachment: AttachmentB--DenialofRehearing (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) No. 20-107 In The Supreme Court of the United States ____________________ CEDAR POINT NURSERY and FOWLER PACKING COMPANY, INC., Petitioners, v. VICTORIA HASSID, in her official capacity as Chair of the Agricultural Labor Relations Board; et al., Respondents. ____________________ On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit ____________________ PETITIONERS’ BRIEF ON THE MERITS ____________________ HOWARD A. SAGASER JOSHUA P. THOMPSON* IAN B. WIELAND *Counsel of Record Sagaser, Watkins & DAMIEN M. SCHIFF & Wieland PC WENCONG FA 5260 North Palm Avenue, CHRISTOPHER M. KIESER Suite 400 Pacific Legal Foundation Fresno, California 93704 930 G Street Telephone: (559) 421-7000 Sacramento, California 95814 has@sw2law.com Telephone: (916) 419-7111 ian@sw2law.com JThompson@pacificlegal.org DSchiff@pacificlegal.org WFa@pacificlegal.org CKieser@pacificlegal.org Counsel for Petitioners 3.C.c Packet Pg. 58 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) i QUESTION PRESENTED California law forces agricultural businesses to allow labor organizers onto their property three times a day for 120 days each year. The regulation provides no mechanism for compensation. A divided panel below held that, although the regulation takes an uncompensated easement, it does not effect a per se physical taking of private property because it does not allow “24 hours a day, 365 days a year” occupation. As an eight-judge dissent from denial of rehearing en banc noted, the panel “decision not only contradicts Supreme Court precedent but also causes a circuit split.” The question presented is whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment. 3.C.c Packet Pg. 59 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) ii PARTIES Petitioners are: Cedar Point Nursery and Fowler Packing Company, Inc. Respondents are: Victoria Hassid, in her official capacity as Chair of the Agricultural Labor Relations Board; Santiago Avila-Gomez, in his official capacity as Executive Secretary of the Agricultural Labor Relations Board; and Isadore Hall III, in his official capacity as Board Member of the Agricultural Labor Relations Board. Pursuant to Rule 35(3), Chair Hassid is substituted for former Chair Genevieve Shiroma, who was a Respondent below. CORPORATE DISCLOSURE STATEMENT Cedar Point Nursery and Fowler Packing Company, Inc. have no parent corporations and no publicly held company owns 10% or more of the stock of either business. 3.C.c Packet Pg. 60 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) iii TABLE OF CONTENTS QUESTION PRESENTED .......................................... i PARTIES ..................................................................... ii CORPORATE DISCLOSURE STATEMENT ............ ii TABLE OF AUTHORITIES ....................................... v INTRODUCTION ....................................................... 1 OPINIONS .................................................................. 2 JURISDICTION .......................................................... 2 CONSTITUTIONAL AND STATUTORY PROVISIONS AT ISSUE ........................................... 2 STATEMENT OF THE CASE .................................... 3 A. Factual Background .......................................... 3 1. The Access Regulation – Operation .............. 3 2. The Access Regulation – History .................. 6 3. Petitioners.................................................... 10 a. Cedar Point Nursery............................. 10 b. Fowler Packing Company ..................... 11 4. Procedural History ...................................... 12 SUMMARY OF ARGUMENT .................................. 14 ARGUMENT ............................................................. 17 I. The Access Regulation Effects a Physical Taking and Violates the Fifth Amendment Because It Takes an Easement From Petitioners Without Compensation ................ 17 A. The Uncompensated Appropriation of a Discrete Property Interest Is a Physical Taking ........................................... 18 3.C.c Packet Pg. 61 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) iv B. The Access Regulation Effects a Physical Taking Because It Appropriates an Easement in Gross Without Compensation ..................... 20 C. The Access Regulation’s Time Limits Do Not Exempt It From Categorical Treatment .................................................... 22 II. A Per Se Rule Is Needed to Protect the Right to Exclude .............................................. 28 A. The Right to Exclude Is Fundamental ....... 29 B. Only a Per Se Rule for All Easements Adequately Protects the Right to Exclude ........................................................ 33 CONCLUSION .......................................................... 36 3.C.c Packet Pg. 62 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) v TABLE OF AUTHORITIES Cases Agric. Labor Relations Bd. v. Superior Court (Pandol & Sons), 546 P.2d 687 (Cal. 1976) ......................................... 8 Animas Valley Sand & Gravel, Inc. v. Bd. of County Comm’rs, 38 P.3d 59 (Colo. 2001) .................................... 19–20 Apple, Inc. v. Pepper, 139 S. Ct. 1514 (2019) ........................................... 35 Ark. Game & Fish Comm’n v. United States, 568 U.S. 23 (2012) ................................................. 25 Ark. Game & Fish Comm’n v. United States, 736 F.3d 1364 (Fed. Cir. 2013) ............................. 25 Atchison, T. & S. F. Ry. Co. v. Abar, 79 Cal. Rptr. 807 (Ct. App. 1969) ......................... 23 Bernardsville Quarry, Inc. v. Borough of Bernardsville, 608 A.2d 1377 (N.J. 1992) ..................................... 19 Bertuccio v. Agric. Labor Relations Bd., 249 Cal. Rptr. 473 (Ct. App. 1988) ......................... 6 Boise Cascade Corp. v. United States, 296 F.3d 1339 (Fed. Cir. 2002) ....................... 26, 35 Citizens for Open Access to Sand & Tide, Inc. v. Seadrift Ass’n, 71 Cal. Rptr. 2d 77 (Ct. App. 1998) ...................... 23 Collins v. Gray, 86 P. 983 (Cal. Ct. App. 1906) ............................... 23 Dolan v. City of Tigard, 512 U.S. 374 (1994) ................................... 13, 22, 34 3.C.c Packet Pg. 63 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) vi Eaton v. Boston, C. & M.R.R., 51 N.H. 504 (1872) .......................................... 29–30 Fashion Valley Mall, LLC v. NLRB, 172 P.3d 742 (Cal. 2007) ....................................... 32 Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308 (1874) ............................................... 30 Harry Carian Sales v. Agric. Labor Relations Bd., 703 P.2d 27 (Cal. 1985) ........................................... 6 Hendler v. United States, 952 F.2d 1364 (Fed. Cir. 1991) ........... 15, 26–27, 35 Horne v. Dep’t of Agric., 576 U.S. 350 (2015) ....................... 16–18, 22, 32, 34 J.R. Norton Co. v. Agric. Labor Relations Bd., 238 Cal. Rptr. 87 (Ct. App. 1987) ........................... 5 Kaiser Aetna v. United States, 444 U.S. 164 (1979) ........................................ passim Knick v. Twp. of Scott, 139 S. Ct. 2162 (2019) ..................................... 27, 34 Knick v. Twp. of Scott, 862 F.3d 310 (3d Cir. 2017) ................................... 27 Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) ........................................... 8, 31 Lingle v. Chevron, U.S.A. Inc., 544 U.S. 528 (2005) ............................................... 18 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) ........................................ passim Los Angeles Terminal Land Co. v. Muir, 68 P. 308 (Cal. 1902) ....................................... 20, 23 3.C.c Packet Pg. 64 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) vii Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) ............................................. 19 Marvin M. Brandt Revocable Trust v. United States, 572 U.S. 93 (2014) ......................... 21 McDonald v. City of Chicago, 561 U.S. 742 (2010) ............................................... 34 NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956) ............................................. 7–8 NLRB v. Lake Superior Lumber Corp., 167 F.2d 147 (6th Cir. 1948) ................................... 7 NLRB v. S & H Grossinger’s Inc., 372 F.2d 26 (2d Cir. 1967) ....................................... 7 Noghrey v. Town of Brookhaven, 48 A.D.3d 529 (N.Y. App. Div. 2008) .................... 20 Nollan v. Cal. Coastal Comm’n, 483 U.S. 825 (1987) ................. 15–16, 19, 22, 30, 32 Pandol & Sons v. Agric. Labor Relations Bd., 159 Cal. Rptr. 584 (Ct. App. 1979) ......................... 6 Peabody v. United States, 231 U.S. 530 (1913) ............................................... 24 Penn Central Transportation Co v. City of New York, 438 U.S. 104 (1978) ......................................... 16, 19 Phillips v. Wash. Legal Found., 524 U.S. 156 (1998) ............................................... 23 Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327 (1922) ............................. 15, 24, 26, 35 PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980) ................................................. 31 3.C.c Packet Pg. 65 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) viii Pumpelly v. Green Bay & Mississippi Canal Co., 80 U.S. (13 Wall.) 166 (1871) ................................ 18 Ridge Line, Inc. v. United States, 346 F.3d 1346 (Fed. Cir. 2003) ............................. 27 Scher v. Burke, 192 Cal. Rptr. 3d 704 (Ct. App. 2015), aff’d, 395 P.3d 680 (Cal. 2017) .............................. 23 Superior Farming Co. v. Agric. Labor Relations Bd., 198 Cal. Rptr. 608 (Ct. App. 1984) ......................... 6 Surfside Colony, Ltd. v. Cal. Coastal Comm’n, 277 Cal. Rptr. 371 (Ct. App. 1991) ................. 23, 27 Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302 (2002) ........................................ passim Tex-Cal Land Mgmt., Inc. v. Agric. Labor Relations Bd., 595 P.2d 579 (Cal. 1979) ......................................... 6 Union Pacific Railroad Co. v. Santa Fe Pacific Pipelines, Inc., 180 Cal. Rptr. 3d 173 (Ct. App. 2014) ............ 23–24 United States v. Cress, 243 U.S. 316 (1917) ............................. 15, 24–26, 35 United States v. Causby, 328 U.S. 256 (1946) ......................................... 15, 24 United States v. Dickinson, 331 U.S. 745 (1947) ............................................... 21 United States v. Karo, 468 U.S. 705 (1984) ............................................... 29 United States v. Pewee Coal Co., 341 U.S. 114 (1951) ............................................... 18 3.C.c Packet Pg. 66 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) ix Walker v. Old Colony & N. Ry. Co., 103 Mass. 10 (1869) ............................................... 30 Washington v. Glucksburg, 521 U.S. 702 (1997) ............................................... 30 Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (1980) ............................................... 23 Willard v. First Church of Christ, Scientist, 498 P.2d 987 (Cal. 1972) ....................................... 23 William C. Haas & Co., Inc. v. City & Cty. of S.F., 605 F.2d 1117 (9th Cir. 1979) ............................... 19 Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) ............................................... 34 Yee v. City of Escondido, 503 U.S. 519 (1992) ............................................... 19 Constitutional Provisions U.S. Const. amend. V .................................................. 2 amend. XIV .............................................................. 3 Statutes 28 U.S.C. § 1254(1) ..................................................... 2 § 1331 ....................................................................... 2 42 U.S.C. § 1983 .................................................... 2, 12 Cal. Civ. Code § 806 .................................................. 23 Cal. Lab. Code § 1140, et seq. ..................................... 3 § 1152 ....................................................................... 3 3.C.c Packet Pg. 67 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) x Regulations Cal. Code Regs. tit. 8, § 20201 .................................... 5 § 20216 ..................................................................... 6 § 20300(f) ................................................................. 4 § 20900 ................................................................. 3–4 § 20900(d) ................................................................ 7 § 20900(e) ............................................................. 3–4 § 20900(e)(1)(A) ............................................. 3–5, 14 § 20900(e)(1)(B) ....................................................... 4 § 20900(e)(2) ............................................................ 4 § 20900(e)(3) ............................................................ 5 § 20900(e)(3)(A) ....................................................... 5 § 20900(e)(3)(B) ....................................................... 5 § 20900(e)(4)(C) ....................................................... 5 § 20900(e)(5)(C) ....................................................... 5 §§ 20219–20220 ....................................................... 6 §§ 20220–20278 ....................................................... 6 Other Authorities 12 Witkin, Summary 11th Real Prop. (2020) .......... 23 2 Blackstone, William, Commentaries on the Laws of England (1766) .................................. 29 3.C.c Packet Pg. 68 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) xi Aguirre International, The California Farm Labor Force: Overview and Trends from the National Agricultural Workers Survey 30, available at https://www.alrb.ca.gov/wp-content/uploads/ sites/196/2018/05/CalifFarmLabor ForceNAWS.pdf ....................................................... 9 Callies, David L. & Breemer, J. David, The Right to Exclude Others From Private Property: A Fundamental Constitutional Right, 3 Wash. U. J.L. & Pol’y 39 (2000) ................... 30–31 Madison, James, Property, Nat’l Gazette, Mar. 27, 1792, in 14 J. Madison, The Papers of James Madison (R. Rutland & T. Mason eds. 1983) ....... 29 Note, Necessity As An Excuse for a Trespass Upon Land, 22 Harv. L. Rev. 296 (1909) ............. 31 Sisk, Gregory C., Returning to the PruneYard: The Unconstitutionality of State-Sanctioned Trespass in the Name of Speech, 32 Harv. J.L. & Pub. Pol’y 389 (2009) ............ 27, 32 3.C.c Packet Pg. 69 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 1 INTRODUCTION The issue presented in this case—whether the taking of a permanent albeit time-limited easement effects a physical taking—has divided the circuits and now the judges of the Ninth Circuit. Nevertheless, the issue can be resolved through a straightforward application of this Court’s existing precedents. An easement is a standalone and separately alienable real property interest, and the appropriation of a real property interest by the government merits per se treatment as a physical taking. Moreover, this Court has recognized that regular and predictable governmental invasions of private property—even if not 24/7—receive per se treatment because they function as if the government had taken an easement. Accordingly, whenever the government expresses the intent—either by force of law or through a course of conduct—to appropriate a time-limited easement, it effects a per se taking. By that standard, Petitioners Cedar Point Nursery and Fowler Packing Company should win. They have been made subject to a regulation that denies them the right to exclude union organizers for 120 days a year. By taking this fundamental property right from Petitioners without compensation, the Agricultural Labor Relations Board has violated the core of the protections afforded by the Takings Clause. This Court should hold that where a government regulation infringes the right to exclude in the form of an easement, the uncompensated taking of that easement violates the Fifth Amendment. 3.C.c Packet Pg. 70 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 2 OPINIONS The panel opinion of the court of appeals, including Judge Leavy’s dissent, is published at 923 F.3d 524 (9th Cir. 2019), and included in Petitioners’ Appendix (Pet. App.) at A. The court of appeals’ denial of the petition for rehearing en banc, including the opinion of two concurring judges and the opinion of eight dissenting judges, is published at 956 F.3d 1162 (9th Cir. 2020), and included at Pet. App. E. The decisions of the district court are unpublished but included here at Pet. App. B, Pet. App. C, and Pet. App. D. JURISDICTION The district court had jurisdiction over this case under 42 U.S.C. § 1983 and 28 U.S.C. § 1331. The district court granted the defendants’ motion to dismiss on June 29, 2016. Petitioners filed a timely appeal to the Ninth Circuit. On May 8, 2019, a panel of the Ninth Circuit affirmed the district court’s dismissal. Petitioners then filed a timely petition for rehearing en banc. The petition failed to receive the votes of a majority of the judges and was denied on April 29, 2020. The petition for writ of certiorari was filed on July 29, 2020, and granted on November 13, 2020. This Court has jurisdiction under 28 U.S.C. § 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS AT ISSUE The Fifth Amendment to the U.S. Constitution provides, in relevant part, “nor shall private property be taken for public use, without just compensation.” U.S. Const. amend. V. 3.C.c Packet Pg. 71 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 3 The Fourteenth Amendment to the U.S. Constitution provides, in relevant part, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. Cal. Code Regs. tit. 8, § 20900(e) provides, in pertinent part: Accordingly the Board will consider the rights of employees under Labor Code Section 1152 to 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, subject to the following regulations: (1) When Available. (A) Access under this section onto an agricultural employer’s property shall be available to any one labor organization for no more than four (4) thirty-day periods in any calendar year.1 STATEMENT OF THE CASE A. Factual Background 1. The Access Regulation – Operation In 1975, California enacted the Agricultural Labor Relations Act. See Cal. Lab. Code § 1140, et seq. The Act does not authorize access for union organizers on private property. See id. § 1152. But the Agricultural Labor Relations Board (Board) immediately promulgated an emergency access regulation, which took effect the following day. Cal. 1 The full text of the regulation at issue is provided in the Appendix at Pet. App. F. 3.C.c Packet Pg. 72 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 4 Code Regs. tit. 8, § 20900 (Access Regulation); Pet. App. G-5–G-6 ¶ 15. Roughly three months later, the Board certified the regulation, allowing it to remain in effect indefinitely. Id. The Access Regulation allows union organizers to enter 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). Union organizers need not obtain the employer’s consent before entering the employer’s property.2 Instead, they may access an agricultural employer’s property after filing two copies of a written notice of intention to take access with the Board, together with proof of service of a copy of the written notice served to a person at the employer’s business who is entitled to accept service. Id. § 20900(e)(1)(B); see also id. § 20300(f) (explaining how to effectuate service upon the employer).3 The filing of the notice triggers the 30-day period for the union organizers to “access” private property. Id. § 20900(e)(1)(B). Each union is allowed to enter private property for 120 days each year. Id. § 20900(e)(1)(A) (providing that access to “agricultural employer’s property shall be available to any one labor organization for no more than four (4) thirty-day 2 Although the Access Regulation allows the union and employer to reach “voluntary agreements on access,” it does not require them to do so. Cal. Code Regs. tit. 8, § 20900(e)(2). Further, no attempts to reach an agreement “shall be deemed grounds for delay in the taking of immediate access once a labor organization has filed its notice of intent to take access.” Id. 3 This process may be accomplished the same day; indeed, other provisions of the Access Regulation make clear that labor organizations may take “immediate access.” Id. § 20900(e)(2). 3.C.c Packet Pg. 73 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 5 periods in any calendar year”). Access is given for three hours per day. Id. § 20900(e)(3) (providing for union access an hour before work, an hour after work, and an hour during the lunch period). The union organizers can designate the places where they will take access so long as it is an area where employees “congregate before and after working,” id. § 20900(e)(3)(A), or a location where employees eat their lunch. Id. § 20900(e)(3)(B). The Access Regulation prohibits organizers from engaging in “conduct disruptive of the employer’s property or agricultural operations, including injury to crops or machinery or interference with the process of boarding buses.” Id. § 20900(e)(4)(C). Yet “[s]peech by itself shall not be considered disruptive conduct” and “[d]isruptive conduct by particular organizers shall not be grounds for expelling organizers not engaged in such conduct, nor for preventing future access.” Id. By contrast, the Access Regulation provides serious enforcement mechanisms to ensure property owners’ compliance. For example, a property owner who interferes with a union organizer’s attempt to enter the property is subject to an unfair labor practice charge under the California Labor Code. Id. § 20900(e)(5)(C). “Interference” has been interpreted by the Board to include such innocuous actions as “observing” union organizers as they take access. See J.R. Norton Co. v. Agric. Labor Relations Bd., 238 Cal. Rptr. 87, 105–06, 107 (Ct. App. 1987) (overruling Board’s determination that employer committed unfair labor practice by “engaging in surveillance of union activities”). Further, other Board regulations allow any person to file a charge, accompanied by a 3.C.c Packet Pg. 74 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 6 brief statement of facts, against any other person for engaging in such practices. Cal. Code Regs. tit. 8, § 20201. An unfair labor practice charge triggers an investigation by the Board’s regional director, who determines whether the property owner has, in fact, committed such a practice. Id. § 20216. If the regional director finds that there is no reasonable cause for the charge, the charging party may seek review by the Board’s general counsel, who may issue a complaint on behalf of the Board. Id. §§ 20219–20220. A complaint drags the property owner into a litigation- like proceeding before an Administrative Law Judge. Id. §§ 20220–20278. If the judge finds that an unfair labor practice has been committed, the judge may compel “affirmative action by the respondent” to facilitate the policies of the Agricultural Labor Relations Act, and order other sanctions.4 2. The Access Regulation – History The significant measures imposed by the Access Regulation are the product of a bygone era. In the 4 The Board has leeway to craft powerful remedies when it has found that an employer has engaged in an unfair labor practice. See Harry Carian Sales v. Agric. Labor Relations Bd., 703 P.2d 27, 42–43 (Cal. 1985). These remedies may include forced bargaining orders, id., back pay or wages, Superior Farming Co. v. Agric. Labor Relations Bd., 198 Cal. Rptr. 608, 623 (Ct. App. 1984), make-whole relief, Bertuccio v. Agric. Labor Relations Bd., 249 Cal. Rptr. 473, 485 (Ct. App. 1988), interest on make-whole relief, id., requiring the employer to mail or read notices to workers, Tex-Cal Land Mgmt., Inc. v. Agric. Labor Relations Bd., 595 P.2d 579, 591 (Cal. 1979), and requiring the employer to provide unions with the names and addresses of all employees, Pandol & Sons v. Agric. Labor Relations Bd., 159 Cal. Rptr. 584, 588 (Ct. App. 1979). 3.C.c Packet Pg. 75 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 7 decades before the Board promulgated the Access Regulation, workers sometimes lived on the property of their employer with little to no access to the outside world. See, e.g., NLRB v. Lake Superior Lumber Corp., 167 F.2d 147, 148 (6th Cir. 1948) (employees lived in remote camps 18 miles from the nearest town); NLRB v. S & H Grossinger’s Inc., 372 F.2d 26, 29 (2d Cir. 1967) (employees lived on the premises and left “only rarely for brief visits to the neighboring village”). Nevertheless, the Access Regulation is neither tailored to agricultural businesses with employees living on-site, nor even more generally to situations where employees are inaccessible. See Cal. Code Regs. tit. 8, § 20900(d). The regulation explicitly eschews a case-by-case determination, which it proclaims would cause “uncertainty and instability.” Id. Instead, it appropriates an easement across the property of all agricultural businesses in California, irrespective of the accessibility of their employees. See id. By imposing a categorical requirement that every agricultural business in California open its property to union organizers, the Access Regulation differs markedly from the access permitted under the National Labor Relations Act (NLRA), which is limited to situations “when the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels.” NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956). The Access Regulation raised constitutional questions at the outset. Agricultural businesses immediately challenged the regulation in California state court under a variety of theories including the Takings and Due Process Clauses of the United States 3.C.c Packet Pg. 76 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 8 Constitution. See Agric. Labor Relations Bd. v. Superior Court (Pandol & Sons), 546 P.2d 687, 690– 91 (Cal. 1976). Two state superior courts ruled in the businesses’ favor and temporarily enjoined the Board from enforcing the regulation. Id. at 692–93. The California Supreme Court, however, vacated the injunction in a divided 4–3 decision. The majority held that the constitutionality of a broad easement across all agricultural businesses was compelled by this Court’s decision in Babcock & Wilcox, and that a prerequisite finding that workers are inaccessible through usual channels was not necessary to make the regulation consistent with the Takings Clause. See Pandol & Sons, 546 P.2d at 698 (“We deem [Babcock & Wilcox] dispositive of the issue of the federal constitutionality of access to agricultural property . . . .”). The dissent, on the other hand, read Babcock & Wilcox to require a case-by-case finding of inaccessibility as a prerequisite under the NLRA. Id. at 712 (Clark, J., dissenting). Because the Access Regulation failed that standard, it necessarily constituted “an unwarranted infringement on constitutionally protected property rights.” Id. at 706 (Clark, J., dissenting).5 5 The dissent was correct regarding the scope of the access right under the NLRA. Sixteen years after the California Supreme Court’s decision in Pandol & Sons, this Court announced that “Babcock’s teaching is straightforward: § 7 simply does not protect nonemployee union organizers except in the rare case where ‘the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels.’” Lechmere, Inc. v. NLRB, 502 U.S. 527, 537 (1992) (quoting Babcock & Wilcox, 351 U.S. at 112) (emphasis in original). 3.C.c Packet Pg. 77 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 9 Forty-five years since the Access Regulation was first promulgated, union organizers continue to use the easement that the regulation authorized. See Pet. App. G-18–G-25. In the year preceding this lawsuit, the United Farm Workers (UFW) filed 62 notices of intent to take access. See id. Yet circumstances today differ drastically from those that prompted the Access Regulation in 1975.6 As conditions at Petitioners Cedar Point Nursery and Fowler Packing demonstrate, agricultural workers do not generally live on the property of their employer,7 can speak either English or Spanish,8 and have access to union advertisements through smartphones, radio, and other means of communication.9 In addition, UFW 6 Of course, labor organizers have always had the right—and continue to have the right—to disseminate information on the public spaces immediately outside the private property of agricultural businesses. 7 According to a 2005 study on the Board’s website, “[n]early all workers (96%) reported living off-farm in a property not owned or administered by their present employer.” Aguirre International, The California Farm Labor Force: Overview and Trends from the National Agricultural Workers Survey 30, available at https://www.alrb.ca.gov/wp- content/uploads/sites/196/2018/05/CalifFarmLaborForceNAWS. pdf; see also Pet. App. G-9 ¶ 27 (none of Cedar Point’s workers live on premises; id. at G-11 ¶ 37 (none of Fowler Packing’s employees live on premises). 8 The record shows that only one percent of the employees at Fowler Packing and none of the employees at Cedar Point lack the ability to converse in either English or Spanish. See Appellants’ Excerpts of Record (ER), 9th Cir. Dkt. 8-2, at ER 60 (Rodriquez Decl. ¶ 5) (Fowler); ER 96 (Halpenny Decl. ¶ 4) (Cedar Point). 9 Employees at both Fowler Packing and Cedar Point have cellular phones or smart phones. ER 88 (Sanders Decl. ¶ 5); ER 3.C.c Packet Pg. 78 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 10 runs a multi-channel and multi-state radio network— Radio Campesina—which disseminates worker- related information.10 The network operates at least three radio stations in California—KUFW (106.3 FM—Visalia), KMYX (92.5 FM—Bakersfield), and KSEA (107.9 FM—Salinas)—that broadcast the union’s message to its target audience in heavily agricultural areas of California. See Amicus Br. of Cal. Farm Bureau in support of Petition for Certiorari, 20- 107, at 12. In all, although the Access Regulation imposes the same extraordinary measures, the conditions that prompted those measures no longer exist today. 3. Petitioners Petitioners Cedar Point Nursery and Fowler Packing Company are California agricultural growers that have been subjected to the Access Regulation. a. Cedar Point Nursery Cedar Point Nursery is a strawberry plant producer nestled in the mountains near the California-Oregon border. Pet. App. G-4 ¶ 8. Cedar Point ships its strawberry plants to producers nationwide. Id. Cedar Point employs more than 400 seasonal workers and about 100 full-time workers at its Dorris, California nursery. Pet. App. G-9 ¶ 26. None of those 99 (Arias Decl. ¶ 5); ER 93 (McEwen Decl. ¶ 5); ER 90 (Garcia Decl. ¶ 5); see also Amicus Br. of Cal. Farm Bureau in support of Petition for Certiorari, 20-107, at 13 (citing Union field coordinator’s statements that agricultural workers all have smartphones, and generally use Facebook). 10 See ER 67 (Desormeaux Decl. Exh. A). 3.C.c Packet Pg. 79 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 11 workers live on premises. Id. ¶ 27. Instead, Cedar Point pays for housing for its seasonal workers in nearby hotels in Klamath Falls, Oregon. Cedar Point compensates its workers at or above market rates and provides them with complementary meals on the premises. Id. ¶ 28. During the height of Cedar Point’s harvesting season in October 2015, union protesters entered at 5:00 a.m., without any prior notice of intent to access the property. Id. ¶ 30. The union protesters moved through the trim sheds with bullhorns, distracting and intimidating many of the hundreds of employees who were preparing strawberry plants. Id. Cedar Point filed a charge against UFW with the Board, alleging that it violated the Access Regulation. Pet. App. G-10 ¶ 34. UFW also filed a charge against Cedar Point, alleging that Cedar Point committed an unfair labor practice. Id. The Board dismissed both charges. If not for the Access Regulation, Cedar Point would exercise its right to exclude union organizers from its property. Id. ¶ 35. b. Fowler Packing Company Petitioner Fowler Packing Company is a large- scale shipper of table grapes and citrus headquartered in Fresno, California. Pet. App. A-11. Fowler employs 1,800 to 2,500 people in its field operations and around 500 people at its Fresno packing facility. Id. Its employees do not live on premises and are fully accessible to the union when they are not at work. Pet. App. G-11 ¶ 37. Fowler takes the well-being of its employees seriously. It provides free, wholesome meals for its employees on premises, and maintains a medical 3.C.c Packet Pg. 80 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 12 clinic that serves employees and their family members free-of-charge. Id. ¶ 36. Fowler gives all employees a card with a “hotline” number, which they may use to anonymously report any signs of abuse, misconduct, harassment, or unsafe working conditions. Id. In 2015, UFW filed an unfair labor practices charge, which alleged that Fowler Packing interfered with the UFW’s access rights for three days in July. Id. ¶ 38. Fowler Packing denied the charge, and UFW withdrew it without explanation on the eve of this litigation. Id. ¶ 39. If not for the Access Regulation, Fowler Packing would exercise its right to exclude union organizers from its property. Id. ¶ 40. 4. Procedural History In February 2016, Petitioners filed their complaint for declaratory and injunctive relief under 42 U.S.C. § 1983 against several members of the Board and the Board’s Executive Secretary, all of whom were sued in their official capacities. Pet. App. A-11. Petitioners sought to halt enforcement of the Access Regulation on the grounds that it takes an easement without compensation in violation of the Fifth and Fourteenth Amendments to the United States Constitution.11 Petitioners alleged that the Access Regulation “imposes an easement across the private property of Cedar Point and Fowler for the benefit of union organizers.” Pet. App. G-4 ¶ 7. 11 Petitioners also brought a claim under the Fourth and Fourteenth Amendments to the United States Constitution that the Access Regulation constituted an unlawful seizure of their property. Pet. App. G-15–G-16 ¶¶ 59–65. The district court dismissed Petitioners’ Fourth Amendment claim, Pet. App. B- 10–B-13, and Petitioners have not sought this Court’s review of that claim. 3.C.c Packet Pg. 81 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 13 Because the Access Regulation takes an easement “without consent or compensation,” Petitioners alleged that “it causes an unconstitutional taking.” Pet. App. G-15 ¶ 58. The district court granted the Board’s motion to dismiss the case on the ground that Petitioners had failed to state a plausible takings claim. See Pet. App. B-8–B-10; D-9–D-15. The Ninth Circuit affirmed in a divided opinion. According to the panel majority, the taking of an easement was not a “classic taking in which government directly appropriates private property.” Pet. App. A-14. The panel reasoned that because the Access Regulation did not “allow random members of the public to unpredictably traverse their property 24 hours a day, 365 days a year” it could not be a per se physical taking. Pet. App. A-17–A-18. The panel also noted that the Access Regulation could not effect a per se taking “because the sole property right affected by the regulation is the right to exclude.” Pet. App. A-18. Judge Leavy dissented. In his view, “the Access Regulation” facilitates a “physical, not regulatory, occupation because the ‘right to exclude’ is ‘one of the most fundamental sticks’ in the bundle of property rights.” Pet App. A-29 (quoting Dolan v. City of Tigard, 512 U.S. 374, 394 (1994); Kaiser Aetna v. United States, 444 U.S. 164, 179–80 (1979)). The Ninth Circuit denied Petitioners’ request for rehearing en banc over the dissent of eight judges. Writing for the dissenters, Judge Ikuta explained that the panel decision “creates a circuit split, disregards binding Supreme Court precedent and deprives property owners of their constitutional rights,” Pet. App. E-32. In the dissent’s view, the Ninth Circuit “should have taken this case en banc so that the 3.C.c Packet Pg. 82 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 14 Supreme Court will not have to correct us again.” Pet. App. E-10. Judge Ikuta’s dissent invoked cases and treatises showing that the Access Regulation took an easement under longstanding principles of California law. Pet. App. E-17–E-23. Judge Ikuta stressed that the taking of an easement by the government is a per se physical taking, regardless of whether the easement allows for access “24 hours a day, 365 days a year.” Pet. App. E- 23–E-26. The judges in the panel majority concurred in the denial of rehearing en banc. The concurring judges disagreed that the taking of an easement constitutes a per se physical taking, Pet App. E-5, and reiterated their view that the “majority opinion correctly held that [Petitioners] have not suffered a ‘permanent and continuous’ loss of their right to exclude the public from their property.” Pet. App. E-9. SUMMARY OF ARGUMENT A regulation promulgated by California’s Agricultural Labor Relation’s Board authorizes the taking of an access easement from every agricultural business in the state for the benefit of union organizers. Cal. Code Regs. tit. 8, § 20900(e)(1)(A). Under the terms of the Access Regulation, organizers may invade the businesses’ private property for three hours each day, 120 days each year. The easement persists even when their employees are easily accessible to union organizers through other means. As a result, Petitioners Cedar Point Nursery and Fowler Packing Company cannot exclude the organizers from their private property. 3.C.c Packet Pg. 83 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 15 The question here is whether this access easement effects a per se physical taking despite the time limitations placed on the organizers’ access. It does. The Access Regulation creates an easement in gross—a real property interest—under California law. “When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner.” Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 322 (2002). On that basis alone, the Court should hold that the imposition of the Access Regulation effects a per se taking. Per se treatment is particularly appropriate when, as here, the property interest taken by the government is an easement. This Court has repeatedly recognized that the taking of an easement is a permanent physical invasion of property that triggers a categorical duty of compensation. Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 831–32 (1987); Kaiser Aetna, 444 U.S. at 180. This Court’s categorical rule does not depend on all day, every day accessibility. Rather, there is “little doubt” that the organizers’ right of access to the growers’ property, “even though temporally intermittent, is not ‘temporary.’” Hendler v. United States, 952 F.2d 1364, 1378 (Fed. Cir. 1991). Several of this Court’s decisions say the same. United States v. Cress, 243 U.S. 316, 327–28 (1917); Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 329–30 (1922); United States v. Causby, 328 U.S. 256, 261–62, 267–68 (1946). Once the property owner establishes that a physical invasion is an easement, it is a taking. The scope of the easement goes only to the amount of compensation due. Causby, 328 U.S. at 267–68. 3.C.c Packet Pg. 84 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 16 The Ninth Circuit held that per se treatment was unwarranted and would have required Petitioners to litigate their takings claim under the multifactor balancing test of Penn Central Transportation Co v. City of New York, 438 U.S. 104 (1978). But the Ninth Circuit and the Board “confuse [the] inquiry concerning per se takings with [the] analysis for regulatory takings.” Horne v. Dep’t of Agric., 576 U.S. 350, 364 (2015). The “taking of a property interest” is a categorical taking while “a mere restriction on its use” is generally not. Nollan, 483 U.S. at 831; see also Tahoe-Sierra, 535 U.S. at 321–22. And per se treatment is particularly warranted here because the taking of an easement deprives the property owners of the right to exclude trespassers from their property, a right that is “universally held to be a fundamental element of the property right.” Kaiser Aetna, 444 U.S. at 179–80. The taking of the right to exclude merits categorical treatment apart from Penn Central’s consideration of economic impact. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434–35 (1982). Petitioners’ proposed rule is simple—the government violates the Takings Clause when it appropriates an easement across private property for the benefit of third parties without compensation. The scope of the easement, including any time restrictions on access, is relevant only to the amount of compensation, not the determination that a taking has occurred. This rule is consistent with the Court’s precedent and limits the need for arbitrary line- drawing that would be required if only the appropriation of certain easements were considered per se takings. The rule also protects the fundamental right of property owners to exclude trespassers from 3.C.c Packet Pg. 85 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 17 their property. The right to exclude is too important to be left at the mercy of government officials who will inevitably seek as much public access as possible without paying for it. Property rights “cannot be so easily manipulated.” Horne, 576 U.S. at 365 (quoting Loretto, 458 U.S. at 439 n.17). For the reasons that follow, Petitioners respectfully ask this Court to vacate the judgment below and remand the case for further proceedings, applying the rule that the appropriation of an easement permitting access to private property for 3 hours each day for 120 days per year is a per se physical taking. ARGUMENT I. The Access Regulation Effects a Physical Taking and Violates the Fifth Amendment Because It Takes an Easement From Petitioners Without Compensation By authorizing union organizers to access and use the private property of California growers, the Access Regulation’s imposition results in the taking of a discrete property interest from Petitioners—namely, an easement in gross. The uncompensated appropriation of an interest in real property is sufficient on its own to establish a physical taking. That the property interest taken in this case is an easement only makes the discrete property interest more obvious, as this Court has consistently held that the government must always provide just compensation for the taking of an easement. That holds true even where an easement does not authorize around-the-clock access. 3.C.c Packet Pg. 86 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 18 In holding that the easement taken by the Access Regulation did not justify categorical treatment, the panel majority below misunderstood the nature of easements and the distinction between physical and regulatory takings. Correctly understood, an easement—including a time-limited easement—is a discrete property interest under California law that authorizes a physical invasion of private property. The appropriation of the access easement here is properly analyzed as a physical, not a regulatory taking. A. The Uncompensated Appropriation of a Discrete Property Interest Is a Physical Taking The Ninth Circuit’s error arises from a misunderstanding of the “longstanding distinction” between physical and regulatory takings. Horne, 576 U.S. at 361 (quoting Tahoe-Sierra, 535 U.S. at 323). This Court’s physical takings doctrine is “as old as the Republic” and rooted in the text of the Fifth Amendment. Tahoe-Sierra, 535 U.S. at 322. While the “paradigmatic” physical taking involves direct government appropriation of private property for a governmental use, see Lingle v. Chevron, U.S.A. Inc., 544 U.S. 528, 537 (2005) (citing United States v. Pewee Coal Co., 341 U.S. 114 (1951)), it has long been understood that the government may also violate the Takings Clause through the physical invasion of private property. See Pumpelly v. Green Bay & Mississippi Canal Co., 80 U.S. (13 Wall.) 166, 181 (1871) (“where real estate is actually invaded . . . it is a taking, within the meaning of the Constitution”). The rule is straightforward: “[w]hen the government physically takes possession of an interest in property 3.C.c Packet Pg. 87 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 19 for some public purpose, it has a categorical duty to compensate” the owner. Tahoe-Sierra, 535 U.S. at 322. While physical takings cases involve “the taking of a property interest,” regulatory takings cases involve restrictions on the use of property. See Nollan, 483 U.S. at 831. Because the government does not take a discrete property interest when it regulates use, such cases are subject to “complex factual assessments.” Yee v. City of Escondido, 503 U.S. 519, 523 (1992). Under the multifactor test set out in Penn Central, courts must consider the economic impact of a regulation on the entire affected parcel, the owner’s investment-backed expectations, and the character of the government action. Penn Central, 438 U.S. at 124. A regulatory use restriction rises to the level of a categorical taking only when it deprives the property owner of “all economically beneficial or productive use” of her parcel. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992). The clearest distinction between physical and regulatory takings is in the evaluation of economic impact. A regulatory use restriction must have a significant economic impact on the owner’s parcel before it is considered a taking.12 Not so for physical 12 Rarely will an easement of any kind diminish the value of a parcel by 50%, much less by 90% or more—a common threshold in Penn Central cases. See William C. Haas & Co., Inc. v. City & Cty. of S.F., 605 F.2d 1117, 1120–21 (9th Cir. 1979) (holding a 95% diminution in value insufficient); Bernardsville Quarry, Inc. v. Borough of Bernardsville, 608 A.2d 1377, 1386–90 (N.J. 1992) (90% diminution in value inadequate to state a claim); Animas Valley Sand & Gravel, Inc. v. Bd. of County Comm’rs, 38 P.3d 59, 67 (Colo. 2001) (Penn Central requires a showing that “land has 3.C.c Packet Pg. 88 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 20 takings. When the government physically takes a property interest, the duty to compensate is categorical “regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof.” Tahoe-Sierra, 535 U.S. at 322. While the extent of a use restriction determines whether it is a taking, the mere fact that the government has invaded a property interest, no matter how small, establishes a physical taking. The “extent of the occupation” is relevant only “in determining the compensation due.” Loretto, 458 U.S. at 437. In short, when the government takes a discrete property interest, it is evaluated as a physical, not a regulatory, taking. B. The Access Regulation Effects a Physical Taking Because It Appropriates an Easement in Gross Without Compensation By refusing to apply the physical takings doctrine, the Ninth Circuit effectively treated the Access Regulation as a mere use restriction. However, the Access Regulation takes a discrete property interest from Petitioners. An easement in gross is a recognized real property interest in California. See Los Angeles Terminal Land Co. v. Muir, 68 P. 308, 312 (Cal. 1902).13 And as Judge Ikuta explained, the Access [only] a value slightly greater than de minimis.”); Noghrey v. Town of Brookhaven, 48 A.D.3d 529, 532–33 (N.Y. App. Div. 2008) (declaring that Penn Central’s economic impact factor “requires a loss in value which is ‘one step short of complete’”). 13 From the beginning, Petitioners have characterized the Access Regulation as an easement. Pet. App. G-14–G-15 ¶¶ 51–58. The Board has never denied that characterization, and the courts rulings below operate on the assumption that the Access 3.C.c Packet Pg. 89 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 21 Regulation’s grant to union organizers of the right to enter and use Petitioners’ land “is the epitome of an easement in gross” under California law. Pet. App. E- 23. Further, this Court has long demonstrated particular concern about the uncompensated taking of easements. Universally, the Court has affirmed the principle that “[e]ven if the Government physically invades only an easement in property, it must nonetheless pay just compensation.” Kaiser Aetna, 444 U.S. at 180. Even before the advent of modern takings law, the Court recognized that “[p]roperty is taken in the constitutional sense when inroads are made upon an owner’s use of it to an extent that . . . a servitude has been acquired either by agreement or in course of time.” United States v. Dickinson, 331 U.S. 745, 748 (1947). This rule is consistent with the common law and the nature of easements. See Marvin M. Brandt Revocable Trust v. United States, 572 U.S. 93, 104–05 (2014). The Court’s view remained the same after Loretto, which held that a “permanent physical invasion” of property establishes a per se physical taking. Loretto, 458 U.S. at 426. Tellingly, while Loretto noted in passing that the “easement of passage” taken in Kaiser Aetna was not a “permanent occupation of land,” id. at 433, Nollan rejected any implication that an easement might not be “permanent” enough to qualify as a per se taking under Loretto’s standard. Instead, Nollan held that an easement does amount to a “permanent physical occupation” under Loretto Regulation takes an easement under California law. Pet. App. A- 15–A-22; D-10–D-15. 3.C.c Packet Pg. 90 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 22 “even though no particular individual is permitted to station himself permanently upon the premises.” Nollan, 483 U.S. at 832. Similarly, in Dolan, 512 U.S. at 393, the Court recognized that the appropriation of easements for public storm-drainage improvements and a pedestrian/bicycle pathway would effect a physical taking. Subsequent precedent reaffirms that the relevant inquiry is whether a property interest has been taken. Tahoe-Sierra, 535 U.S. at 322.14 In short, this Court’s precedent leaves no doubt that the appropriation of an easement effects a per se taking. C. The Access Regulation’s Time Limits Do Not Exempt It From Categorical Treatment Given that the taking of an easement is a physical taking, the Board’s (and Ninth Circuit’s) conclusion that the Access Regulation does not effect a physical taking rests solely on the proposition that the time- limited nature of the access changes the analysis. In other words, the appropriation of an easement rises to the level of a per se taking only if it permits access all day, every day. See Pet. App. A-17–A-18. But as Judge Ikuta aptly noted, “there is no support for the . . . claim that the government can appropriate easements free of charge so long as the easements do not allow for access ‘24 hours a day, 365 days a year.’” Pet. App. E-26. That is true for several reasons. 14 More recently, this Court has reiterated that the government appropriation of an interest in property constitutes a per se taking that requires just compensation. Horne, 576 U.S. at 358. It explicitly rejected the argument that a per se taking occurs only where every property interest is destroyed by government action. Compare id. at 363, with id. at 381 (Sotomayor, J., dissenting). 3.C.c Packet Pg. 91 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 23 First. A time-limited easement effects a per se physical taking because when the government takes a discrete property interest, “it has a categorical duty to compensate the former owner.” Tahoe-Sierra, 535 U.S. at 322. Property interests are created and recognized by state law.15 Phillips v. Wash. Legal Found., 524 U.S. 156, 164 (1998). California law is clear that an easement is a discrete property interest. Muir, 68 P. at 312. It is equally clear that such a right of use is an easement even where limited in time. See, e.g., Willard v. First Church of Christ, Scientist, 498 P.2d 987, 988 (Cal. 1972) (easement for “church hours”); Collins v. Gray, 86 P. 983, 984 (Cal. Ct. App. 1906) (easement for water for “four days of each month during the irrigating season”); Citizens for Open Access to Sand & Tide, Inc. v. Seadrift Ass’n, 71 Cal. Rptr. 2d 77, 81–82 (Ct. App. 1998) (easement excluded “the period from 10:00 . . . at night until one hour before sunrise”); Scher v. Burke, 192 Cal. Rptr. 3d 704, 719 (Ct. App. 2015) (“12 light hours”), aff’d, 395 P.3d 680 (Cal. 2017); Surfside Colony, Ltd. v. Cal. Coastal Comm’n, 277 Cal. Rptr. 371, 375 (Ct. App. 1991) (“daylight hours”). Indeed, limitations are inherent to easements, see 12 Witkin, Summary 11th Real Prop. § 396 (2020) (the holder of an easement is entitled to “a limited use or enjoyment of the other’s land”), and the scope of an easement is limited to the terms of the instrument that created it. Cal. Civ. Code § 806; see also Atchison, T. & S. F. Ry. Co. v. Abar, 79 Cal. Rptr. 807, 813 (Ct. App. 1969); Union Pacific Railroad Co. 15 However, the State—or the Board—does not have unlimited power to redefine property rights. Loretto, 458 U.S. at 439. The government, “by ipse dixit, may not transform private property into public property without compensation.” Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164 (1980). 3.C.c Packet Pg. 92 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 24 v. Santa Fe Pacific Pipelines, Inc., 180 Cal. Rptr. 3d 173, 196–97 (Ct. App. 2014). The limitations on access contained in the Access Regulation are typical, and do not make the easement any less of a property interest. It therefore may not be taken without compensation Second. This Court treats easements as physical takings even where they do not authorize continuous occupation. As early as 1913, the Court recognized that the allegation of repeated artillery firings over private property could amount to the “imposition of . . . a servitude” that “would constitute an appropriation of property for which compensation should be made.” Peabody v. United States, 231 U.S. 530, 538 (1913). Although the Court found the allegations in Peabody insufficient, nine years later it allowed a similar takings claim to proceed based upon allegations of the government’s repeated firing of heavy coast defense guns. Portsmouth Harbor Land & Hotel Co., 260 U.S. at 329–30. “Every successive trespass,” the Portsmouth Harbor Court said, “adds to the force of the evidence” that “a servitude has been imposed.” Id. at 330. Similarly, Causby held that repeated low overflights could—and did—take an “easement of flight” which was the “equivalent of a fee interest.” 328 U.S. at 261–62. This Court remanded the case to the Court of (Federal) Claims to determine the value of the easement for the purposes of compensation. Id. at 267–68. Another example is United States v. Cress, 243 U.S. at 327. There, the Court found a categorical taking where the government’s maintenance of a lock and dam resulted in intermittent but nevertheless continual flooding of the property owner’s land. It made no difference that the land was not continuously 3.C.c Packet Pg. 93 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 25 submerged, nor that the value of the property had not been completely destroyed. Rather, the Court emphasized—in language anticipating Loretto—that the flooding was “a permanent condition” and “the character of the invasion, not the amount of damage resulting from it, so long as the damage is substantial, [is what] determines the question whether it is a taking.” Id. at 327–28. The interest taken, “an easement in the United States to overflow [the property] with water as often as necessarily may result from the operation of the lock and dam,” differed from permanent overflow only in degree, not in kind. See id. at 328–29. “[O]n principle, the right to compensation must arise in the one case as in the other.” Id. at 328.16 None of these easements involved uninterrupted, 24/7 access to land, such that the property would always have the potential to be occupied. Indeed, the 16 Arkansas Game & Fish Commission v. United States, 568 U.S. 23 (2012), is further support. There, the Court rejected the Federal Circuit’s holding that “temporary” flooding cases were exempt from takings liability. Id. at 38 (“We rule today, simply and only, that government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.”). On remand, the Federal Circuit explained that, following this Court’s decision, “the government’s argument is necessarily limited to the contention that the flooding was not sufficient in duration to constitute an appropriation of the Commission's property rights.” Ark. Game & Fish Comm’n v. United States, 736 F.3d 1364, 1369 (Fed. Cir. 2013). The Federal Circuit rejected that argument—it held instead that the flooding caused “an invasion, in the form of a temporary flowage easement.” Id. at 1372. In any event, Arkansas Game & Fish is largely inapplicable to this case because, the servitude authorized by the Access Regulation is a “permanent condition” on Petitioners’ land. Cress, 243 U.S. at 327. 3.C.c Packet Pg. 94 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 26 Causby Court expressly held that a temporary easement would be compensable, while Cress held that “intermittent but inevitably recurring” flooding was just as much a taking as a total, permanent washout.17 These cases suggest that appropriation of an easement permitting “intermittent public use” effects a per se physical taking. See Hendler, 952 F.2d at 1377–78. The easements taken in Portsmouth Harbor, Causby, and Cress differ from that authorized by the Access Regulation in one meaningful way—they were easements acquired by repeated trespasses, whereas the Access Regulation’s easement, like the easement in Nollan, is expressly authorized by law. But that difference only helps Petitioners. Because the Access Regulation authorizes systematic yearly access to Petitioners’ properties, it is a “permanent condition” on the land, see Cress, 243 U.S. at 327—or at least as permanent as any condition can be, see Hendler, 952 F.2d at 1376 (“‘[P]ermanent’ does not mean forever, or anything like it.”). That fact alone means the government’s duty to compensate is categorical.18 It also means that there is no danger that this case involves a handful of “occasional torts,” Portsmouth Harbor, 260 U.S. at 330, rather than an easement. Cf. Boise Cascade Corp. v. United States, 296 F.3d 1339, 1355–57 (Fed. Cir. 2002). 17 Loretto later characterized Causby, Cress, and Portsmouth Harbor as permanent physical invasions. Loretto, 458 U.S. at 428, 430–31. 18 Stated differently, because this Court mandates per se treatment for de facto easements that allow intermittent use, de jure easements that authorize intermittent use must also be subject to per se rules. 3.C.c Packet Pg. 95 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 27 Third. Nothing in Loretto or Nollan warrants a contrary result. Neither case considered the question of time-limited easements where those easements are properly characterized as real property interests under state law. Loretto’s permanence inquiry surely does not mean that a physical invasion must persist forever before it would be compensable. See Hendler, 952 F.3d at 1376. And it is hard to imagine that Nollan would have come out the other way “had the government restricted the easements to daytime use.” Gregory C. Sisk, Returning to the PruneYard: The Unconstitutionality of State-Sanctioned Trespass in the Name of Speech, 32 Harv. J.L. & Pub. Pol’y 389, 410 (2009). Indeed, soon after Nollan, a California court found a taking where the appropriated easement was only for daylight hours. Surfside Colony, 277 Cal. Rptr. at 374–75, 376–77; see also Knick v. Twp. of Scott, 862 F.3d 310, 328 (3d Cir. 2017) (“The fact that the Ordinance only mandates public access during daylight hours does not change the fact that land must be accessible every day, indefinitely.”), vacated on other grounds, 139 S. Ct. 2162 (2019). In the easement context especially, the “permanence” inquiry is a red herring. See Pet. App. E-30–E-31 n.12. (recognizing that “permanent” has borne quite a few different meanings in takings law). Easements are discrete property interests that are, by their very nature, limited to the use of a fee. Despite time-limitations, easements are plainly compensable property interests when appropriated by the government. See Ridge Line, Inc. v. United States, 346 F.3d 1346, 1352 (Fed. Cir. 2003) (“It is well established that the government may not take an easement without just compensation.”). The time limits imposed by the Access Regulation are typical of 3.C.c Packet Pg. 96 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 28 easements and do not affect the physical takings analysis in any meaningful way. * * * At bottom, this Court’s precedents largely answer the question presented. It is well-established that the taking of a discrete property interest triggers a categorical duty to compensate the owner. It is equally settled that the appropriation of an easement is a physical invasion requiring compensation. The only question the Court must answer is whether the government may avoid per se treatment of its uncompensated appropriation of private property simply by placing time limits on the easement it appropriates. But California law is clear that easements are often limited in time, and this Court’s precedent has treated recurring intermittent invasions as per se takings. The Access Regulation deserves the same per se treatment. A time limitation does not change the character of an easement, and it should not change this Court’s analysis. The Court should hold that the appropriation of a time-limited easement is a per se taking under the Fifth Amendment. II. A Per Se Rule Is Needed to Protect the Right to Exclude As the preceding section demonstrates, the taking of any discrete property interest, and particularly an easement, merits per se treatment under this Court’s physical takings doctrine. But there is perhaps a more fundamental reason the uncompensated appropriation of a time-limited easement deserves categorical treatment: the uncompensated 3.C.c Packet Pg. 97 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 29 appropriation of even a limited easement deprives the property owner of his basic “right to exclude . . . all the world” from his property and the “concomitant right to use it exclusively for his own purposes.” United States v. Karo, 468 U.S. 705, 729 (1984) (Stevens, J., concurring in part and dissenting in part). History shows that the right to exclude is “so universally held to be a fundamental element of the property right” that it cannot be infringed without compensation. Kaiser Aetna, 444 U.S. at 179–80. Only a bright-line rule against the uncompensated appropriation of any easement can adequately protect such an important property right. A. The Right to Exclude Is Fundamental Just as this Court’s physical takings jurisprudence is “as old as the Republic,” Tahoe- Sierra, 535 U.S. at 322, so too is the recognition of the fundamental right to exclude. Indeed, in correspondence immediately following the ratification of the Bill of Rights, James Madison quoted William Blackstone’s exposition that property “means that dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” James Madison, Property, Nat’l Gazette, Mar. 27, 1792, in 14 J. Madison, The Papers of James Madison 266 (R. Rutland & T. Mason eds. 1983); see 2 William Blackstone, Commentaries on the Laws of England *2 (1766). State courts in the first century after the founding recognized it too; as one court put it, “[f]rom the very nature of these rights of user and of exclusion, it is evident that they cannot be materially abridged without, ipso facto, taking the owner’s ‘property.’” 3.C.c Packet Pg. 98 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 30 Eaton v. Boston, C. & M.R.R., 51 N.H. 504, 511 (1872); see also Walker v. Old Colony & N. Ry. Co., 103 Mass. 10, 14 (1869) (“One of the valuable incidents of the ownership of land is the right and power of exclusion. So far as the value of the property, depending on this right and power, is affected by its abridgment, compensation therefor should be included in the damages.”); Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308, 320–21 (1874) (“And among the incidents of property in land, or anything else, is not the right to enjoy its beneficial use, and so far to control it as to exclude others from that use, the most beneficial, the one most real and practicable idea of property, of which it is a much greater wrong to deprive a man, than of the mere abstract idea of property without incidents?”). There is no question that the right to exclude unwanted persons from private property is “deeply rooted in our legal tradition.” Washington v. Glucksburg, 521 U.S. 702, 722 (1997). Modern courts—and especially this Court—have continued to regard the right to exclude with special solicitude. Owing to the “unusually serious character” of a government action depriving a property owner of the right to exclude, this Court has required compensation even for occupations of “relatively insubstantial amounts of space” that “do not seriously interfere with the landowner’s use of the rest of his land.” Loretto, 458 U.S. at 430, 433. And in Kaiser Aetna as well as Nollan, the Court recognized that abridgment of the right by an easement—although an easement often does not burden the entire parcel and is unlikely to be in continuous use—is a per se taking. Nollan, 483 U.S. at 831; Kaiser Aetna, 444 U.S. at 180. Other courts have followed this Court’s lead. See David L. Callies & J. David Breemer, The Right to 3.C.c Packet Pg. 99 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 31 Exclude Others From Private Property: A Fundamental Constitutional Right, 3 Wash. U. J.L. & Pol’y 39, 44–46 (2000) (collecting cases). This Court has recognized the fundamental nature of the right to exclude even in cases involving union access on terms significantly more limited than those provided by the Access Regulation. Lechmere, 502 U.S. at 538, for instance, emphatically rejected the NLRB’s interpretation of Section 7 of the NLRA because it impermissibly balanced the employer’s right to exclude with the right to organize under the NLRA. Instead, the Court recognized that the employer’s right to exclude trumped nonemployee access rights in all but the exceptional case in which the employees live on the employer’s property and would otherwise have no other way to learn about their Section 7 rights. Id. at 540.19 The fundamental nature of the right to exclude is so well established that the only case cited below in opposition is PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980). PruneYard rejected a shopping center owner’s claim that California’s requirement that he permit certain expressive speech on his 19 Even the extremely limited right of access permitted under this Court’s interpretation of Section 7 is easily distinguishable from this case. For one, the limited access permitted under the NLRA cannot reasonably be characterized as an easement. See id. at 537 (rejecting the proposition that the NLRA permits even “reasonable” trespasses). Moreover, the limitation of the access right to those cases where employees are truly inaccessible to the outside world suggests that the right is more akin to the “necessity” defense to a trespass action at common law. See Note, Necessity As An Excuse for a Trespass Upon Land, 22 Harv. L. Rev. 296 (1909) (collecting cases). A ruling for Petitioners here need not disturb the narrow access allowed by the NLRA. 3.C.c Packet Pg. 100 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 32 property effected a taking. Indeed, the panel majority below relied heavily on PruneYard in holding that an easement must permit access at all times before it is a per se taking. Pet. App. A-15–A-22. But subsequent decisions of this Court have effectively limited PruneYard to its facts, consistently emphasizing that it applies only to property already publicly accessible. See, e.g., Loretto, 458 U.S. at 434 (in PruneYard, “the owner had not exhibited an interest in excluding all persons from his property”); Nollan, 483 U.S. at 832 n.1 (PruneYard was inapplicable “since there the owner had already opened his property to the general public”); Horne, 576 U.S. at 364 (noting that PruneYard concerned an “already publicly accessible shopping center”). At bottom, PruneYard is an anomaly in American law. See Fashion Valley Mall, LLC v. NLRB, 172 P.3d 742, 756–60 (Cal. 2007) (Chin, J., dissenting) (noting that California is “virtually alone” in recognizing free speech rights on private property); Gregory C. Sisk, supra, at 407 (PruneYard “rested uneasily within the Court’s case law from the beginning”). Against the tide of decisions proclaiming the right to exclude as fundamental, PruneYard stands alone. It certainly provides no support to limit a private company’s right to exclude nonemployees from its non-public property. 3.C.c Packet Pg. 101 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 33 B. Only a Per Se Rule for All Easements Adequately Protects the Right to Exclude Petitioners’ proposed rule is simple—where an infringement on the right to exclude takes the form of an easement, the uncompensated appropriation of that easement violates the Fifth Amendment. Such a rule is necessary to provide sufficient protection for “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Kaiser Aetna, 444 U.S. at 176. Without a clear pronouncement from this Court, the fundamental right to exclude will remain at the mercy of government demands for access, a treatment ill- befitting of such an important aspect of property rights. The Ninth Circuit took a different approach toward the right to exclude. It held that physical takings protections are unavailable where “the sole property right affected by the regulation is the right to exclude.” Pet. App. A-18. Instead, per se treatment for access easements would be allowed only where access is granted continuously and without interruption. Id. It is easy to see how such a rule would diminish the right to exclude beyond recognition. Governments under this regime would be free to abridge the right to exclude, so as long as they left some hours or days free from interference. And while property owners would still be able to challenge the imposition of such easements under Penn Central’s multifactor test, Penn Central’s reliance on such factors as economic impact render it poorly suited to protect the right to exclude. 3.C.c Packet Pg. 102 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 34 Unlike the per se analysis in physical takings cases, success under Penn Central’s regulatory takings inquiry effectively requires the property owner to demonstrate that nearly all of her property has been taken. See Horne, 576 U.S. at 364 (“A regulatory restriction on use that does not entirely deprive an owner of property rights may not be a taking under Penn Central.”). Consideration of economic impact is inconsistent with the nature of the injury occasioned by a deprivation of the right to exclude, which this Court has recognized is so distinct from monetary or economic harm that even “the installation of a cable box on a small corner” of a rooftop is a per se taking. Id. at 363. By routing all time-limited easements through Penn Central, adoption of the Ninth Circuit’s rule would relegate the fundamental right to exclude to second-class status. Cf. Knick v. Twp. of Scott, 139 S. Ct. 2162, 2169 (2019) (overruling the state-litigation requirement of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), because it “relegate[d] the Takings Clause ‘to the status of a poor relation’ among the provisions of the Bill of Rights” (quoting Dolan, 512 U.S. at 392)); McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (“Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.”). A potential third way—a requirement that an easement rise to a certain level of severity before it is considered a per se taking—is also untenable. Courts have already demonstrated the ability to differentiate between an easement and a series of occasional 3.C.c Packet Pg. 103 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 35 trespasses. Compare Hendler, 952 F.2d at 1377–78, with Boise Cascade, 296 F.3d at 1355–57; see also Portsmouth Harbor, 260 U.S. at 330. But a severity requirement would require courts to draw another line—indeed, an “arbitrary and unprincipled line”— between easements that qualify for per se treatment and those that do not. See Apple, Inc. v. Pepper, 139 S. Ct. 1514, 1522 (2019) (rejecting a proposed rule on such grounds in another context). Not only do courts lack any readily available standards for applying such a rule, the distinction that such a rule would operate on makes no sense in the context of easements, which by their very nature regularly contain time limitations. The difference between a time-limited access easement and one available all day, every day is only a matter of degree. Cress, 243 U.S. at 328. Such a rule would place the right to exclude at the mercy of courts balancing private and public interests, a task that should be rare when dealing with a fundamental right. In short, Petitioners’ proposed rule is simple, easy to apply, consistent with takings precedent, and works to protect the fundamental right to exclude trespassers from private property. The Court should hold that where an infringement on the right to exclude takes the form of an easement, the uncompensated appropriation of that easement violates the Fifth Amendment. 3.C.c Packet Pg. 104 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) 36 CONCLUSION For the reasons stated herein, Petitioners respectfully ask this Court to vacate the judgment below and remand the case for further proceedings. DATED: December 2020. Respectfully submitted, HOWARD A. SAGASER JOSHUA P. THOMPSON* IAN B. WIELAND *Counsel of Record Sagaser, Watkins DAMIEN M. SCHIFF & Wieland PC WENCONG FA 5620 North Palm Avenue, CHRISTOPHER M. KIESER Suite 400 Pacific Legal Foundation Fresno, California 93704 930 G Street Telephone: (559) 421-7000 Sacramento, California 95814 has@sw2law.com Telephone: (916) 419-7111 ian@sw2law.com JThompson@pacificlegal.org DSchiff@pacificlegal.org WFa@pacificlegal.org CKieser@pacificlegal.org Counsel for Petitioners 3.C.c Packet Pg. 105 Attachment: AttachmentC--PetitionersBrief (4421 : Amicus Recommendation - Cedar Point Nursery v Hassid) No. 20-107 IN THE CEDAR POINT NURSERY, ET AL., Petitioners, v. VICTORIA HASSID, ET AL., Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF OF NATIONAL ASSOCIATION OF COUNTIES, NATIONAL LEAGUE OF CITIES, U.S. CONFERENCE OF MAYORS, INTERNATIONAL CITY/COUNTY MANAGEMENT ASSOCIATION, INTERNTATIONAL MUNICIPAL LAWYERS ASSOCIATION, AND GOVERNMENT FINANCE OFFICERS ASSOCIATION AS AMICI CURIAE IN SUPPORT OF NEITHER PARTY LISA SORONEN State & Local Legal Center 444 North Capitol St NW Washington, DC 20001 CHARLES W. THOMPSON, JR. AMANDA KELLAR KARRAS International Municipal Lawyers Association 51 Monroe St, Suite 404 Rockville, MD 20850 MATTHEW LITTLETON Counsel of Record DAVID T. GOLDBERG Donahue, Goldberg, Weaver & Littleton 1008 Pennsylvania Ave SE Washington, DC 20003 (202) 683-6895 matt@donahuegoldberg.com 3.C.d Packet Pg. 106 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v i TABLE OF CONTENTS Statement of interest ............................................................ 1 Introduction and summary of argument ............................ 3 Argument The Fourteenth Amendment Does Not Mandate Compensation Whenever Public Officials Or Their Delegees Enter Onto Private Property ....................... 6 A. There are fundamental distinctions between permanent occupations and lesser physical intrusions ................................................................. 6 B. Petitioners’ position that any interference with the right to exclude effects a taking is unsound ................................................................. 11 C. Routine exercises of state police power call for public officials or their delegees to enter onto private property ........................................... 17 Conclusion............................................................................ 19 3.C.d Packet Pg. 107 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v ii TABLE OF AUTHORITIES Cases Andrus v. Allard, 444 U.S. 51 (1979)............................................................12 Arkansas Game & Fish Commission v. United States, 568 U.S. 23 (2012)............................................ 4, 10, 11, 14 Baldwin v. State, 491 P.2d 1121 (Cal. 1972) .................................................5 Boyd v. United States, 116 U.S. 616 (1886) ..........................................................18 Brown v. Legal Foundation, 538 U.S. 216 (2003) ..........................................................18 Camara v. Municipal Court, 387 U.S. 523 (1967) ..........................................................18 Central Hardware Co. v. NLRB, 407 U.S. 539 (1972) ............................................................8 City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999) ..........................................................15 Dolan v. City of Tigard, 512 U.S. 374 (1994) .................................................... 10, 12 First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304 (1987) ..........................................................17 Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) ............................................................8 Hodel v. Irving, 481 U.S. 704 (1987) ..........................................................12 3.C.d Packet Pg. 108 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v iii Horne v. Department of Agriculture, 576 U.S. 350 (2015) ........................................................ 7, 9 Idaho Department of Health & Welfare v. Doe, 244 P.3d 180 (Idaho 2010) ..............................................19 Kaiser Aetna v. United States, 444 U.S. 164 (1979) .................................................... 10, 13 Kelo v. City of New London, 545 U.S. 469 (2005) ..........................................................18 Knick v. Township of Scott, 139 S. Ct. 2162 (2019) ................................................. 5, 18 Koontz v. St. Johns River Water Management District, 570 U.S. 595 (2013) ..........................................................11 Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005) .................................................. 3, 5, 11 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) ................................................. passim Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) ........................................................13 Martin v. City of Struthers, 319 U.S. 141 (1943) ............................................................9 Marvin M. Brandt Revocable Trust v. United States, 572 U.S. 93 (2014) .................................................8 Murr v. Wisconsin, 137 S. Ct. 1933 (2017) .....................................................12 New York v. Burger, 482 U.S. 691 (1987) ..........................................................18 Nollan v. California Coastal Commission, 483 U.S. 825 (1987) .................................................. 8, 9, 13 3.C.d Packet Pg. 109 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v iv PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980).......................................................... 8, 9 Pumpelly v. Green Bay & Mississippi Canal Co., 80 U.S. 166 (1871)............................................................11 Ridge Line, Inc. v. United States, 346 F.3d 1346 (Fed. Cir. 2003).......................................16 Sanguinetti v. United States, 264 U.S. 146 (1924) ............................................................8 See v. City of Seattle, 387 U.S. 541 (1967) .................................................... 17, 18 Slaughter–House Cases, 16 Wall. 36 (1872) ............................................................17 Spencer’s Case, 77 Eng. Rep. 72 (K.B. 1583) ...........................................14 Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 560 U.S. 702 (2010) ...................................................... 9, 12 Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 335 (2002) ..................................................17 United States v. Causby, 328 U.S. 256 (1946) ..........................................................10 United States v. Jacobsen, 466 U.S. 109 (1984) ..........................................................13 United States v. Jones, 565 U.S. 400 (2012) ..........................................................13 Wyman v. James, 400 U.S. 309 (1971) ..........................................................19 3.C.d Packet Pg. 110 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v v Constitutional Provisions U.S. Const. art. I, § 10, cl. 2 ...............................................18 Statutes and Ordinances Alamosa, Colo. Code § 12-35 ..............................................17 Cal. Health & Safety Code § 1596.852 ..............................19 Iowa Code § 123.30(1)(b) ....................................................17 N.J. Stat. § 30:4C-12 ...........................................................19 Neb. Rev. Stat. § 43-1303(5) ..............................................19 Newark, Cal. Code § 5.24.150 ............................................17 Ohio Rev. Code § 3721.02(B)(1) .................................................................17 § 4737.04(C) .....................................................................17 Utah Code § 13-32a-101 .....................................................17 Wash. Rev. Code § 59.18.125 .............................................17 Miscellaneous Charles E. Clark, Real Covenants and Other Interests Which “Run With Land” (2d ed. 1947) ........14 John Echeverria, What is a Physical Taking?, 54 U.C. Davis L. Rev. 731 (2020) ...................................16 Food & Drug Administration, Food Code 2017 § 8-402.11 .........................................................................17 A. Dan Tarlock, Touch and Concern Is Dead, Long Live the Doctrine, 77 Neb. L. Rev. 804 (1998) .............................................15 RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES (1998) ................................................ 9, 13, 15 3.C.d Packet Pg. 111 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v 1 STATEMENT OF INTEREST1 States, cities, and localities enact and administer innu- merable laws authorizing public officials or their delegees to enter onto private property temporarily or intermit- tently to protect public health, safety, and welfare. Amici are not-for-profit organizations with a strong interest in preserving the settled and sound constitutional standards for determining whether the physical intrusions author- ized by these state and local laws constitute takings com- pensable under the federal Constitution. The National Association of Counties (NACo) is the only national association that represents county govern- ments in the United States. Founded in 1935, NACo serves as an advocate for county governments and works to ensure that counties have the resources, skills, and sup- port they need to serve and lead their communities. The National League of Cities (NLC) is the oldest and largest organization representing municipal governments throughout the United States. Working in partnership with forty-nine state municipal leagues, NLC is the voice of more than 19,000 American cities, towns, and villages, representing collectively more than 200 million people. NLC works to strengthen local leadership, influence fed- eral policy, and drive innovative solutions. The U.S. Conference of Mayors (USCM) is the official nonpartisan organization of the more than 1,400 United States cities with a population of more than 30,000 people. 1 No counsel for a party authored this brief in whole or in part, and no person other than amici and their counsel made a monetary contribution to this brief’s preparation and submission. The parties have consented in writing to the filing of this brief. 3.C.d Packet Pg. 112 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v 2 Each city is represented in the USCM by its chief elected official, the mayor. The International City/County Management Associa- tion (ICMA) is a nonprofit professional and educational organization of over 12,000 appointed chief executives and assistants serving cities, counties, towns, and regional en- tities. ICMA’s mission is to advance professional local gov- ernment through leadership, management, innovation, and ethics. The International Municipal Lawyers Association (IMLA) is a nonprofit, nonpartisan, professional organi- zation consisting of more than 2,500 members. Member- ship is comprised of local government entities, including cities, counties, and subdivisions thereof, as represented by their chief legal officers, state municipal leagues, and individual attorneys. IMLA’s mission is to advance the re- sponsible development of municipal law through educa- tion and advocacy by providing the collective viewpoint of local governments around the country on legal issues be- fore state and federal appellate courts. The Government Finance Officers Association (GFOA) is the professional association of state, provincial, and local finance officers in the United States and Canada. The GFOA has served the public finance profession since 1906 and continues to provide leadership to government finance professionals through research, education, and the identification and promotion of best practices. Its more than 20,000 members are dedicated to the sound management of government financial resources. 3.C.d Packet Pg. 113 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v 3 INTRODUCTION AND SUMMARY OF ARGUMENT State and local officials, and their delegees, routinely must enter onto private property as an incident to the ex- ercise of their multitudinous duties. From restaurant in- spections to guardian ad litem home visitations, limited- purpose physical intrusions by governments are an ubiq- uitous feature of American life. Such intrusions of course must comply with the Fourth Amendment’s prohibition on unreasonable searches and seizures. And, in rare cases, governmental entries onto private land can become frequent, lengthy, and/or severe enough that they are “functionally equivalent to the clas- sic taking in which government directly appropriates pri- vate property or ousts the owner from his domain.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 (2005). In those instances, this Court has long recognized, the owner must be compensated. But those cases are and should remain the exception rather than the rule. Petitioners propose a revolution in takings jurispru- dence whereby governments must pay whenever they en- ter onto private land. They reimagine every such entry as a custom-built “easement” that the public “appropriates.” They posit that a landowner’s right to exclude others not only comprises a distinct property interest in toto, but also that it is divisible into micro-interests abridged by anyone who intrudes for any period of time. In this way, each gov- ernmental entry onto private land, no matter how fleeting or unobtrusive, is transmogrified into a direct appropria- tion of a property interest—a classic taking. The sole ex- ception to petitioners’ everything-is-an-easement theory is an ill-defined, blanket exemption for governmental “trespasses,” which do not even trigger the protection of the Takings Clause. 3.C.d Packet Pg. 114 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v 4 Precedent forecloses this rigid approach to physical in- trusions. In Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), and elsewhere, “this Court has consistently distinguished between … cases involving a permanent physical occupation, on the one hand, and cases involving a more temporary invasion,” and imposed a per se compensation mandate “only in the former situa- tion,” id. at 428 (emphasis added). When government per- manently occupies physical space, it utterly destroys three vital sticks in the private owner’s bundle of rights in that space: possession, use, and devise. That characteris- tic of permanent occupations, coupled with landowners’ well-rooted expectation of compensation for them, sup- ports a categorical approach. Outside the “very narrow” class of permanent occupations, id. at 441, however, courts adjudicate physical takings claims not with all-or-nothing rules, but rather with fact-intensive evaluations of the in- trusion’s frequency, duration, and severity; the character of the property; the owner’s reasonable, investment- backed expectations; and the degree to which the invasion was the intended or foreseeable result of authorized gov- ernment action, Arkansas Game & Fish Comm’n v. United States, 568 U.S. 23, 38-39 (2012). Petitioners’ approach would proliferate, not eliminate, “arbitrary line-drawing.” Pet. Br. 16. More troublingly, it would subject a host of important and unexceptional exer- cises of the police power to an impracticable compensation mandate. Basic processes of local self-government—hav- ing nothing to do with land-use regulation—would be plunged into protracted, costly federal litigation over which physical entries count as trespasses and which as takings and, for the latter, what compensation is “just” for 3.C.d Packet Pg. 115 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v 5 a state or local official’s incidental, time-limited interfer- ence with a landowner’s right to exclude. Even if the Court concludes that somewhat more exacting Takings Clause scrutiny is warranted for impermanent physical invasions than has been applied to date by the lower courts, there is no warrant for the bludgeon of per se takings liability for every such invasion. Amici do not support either party in this dispute be- cause the proper disposition of the petition is to dismiss it as improvidently granted. Petitioners would not be enti- tled to the injunctive relief they seek even if they suffered uncompensated takings of property, because they have an adequate remedy at law: an inverse-condemnation claim against the State. See Knick v. Twp. of Scott, 139 S. Ct. 2162, 2179 (2019); Baldwin v. State, 491 P.2d 1121, 1130 (Cal. 1972). Moreover, although they sought and obtained this Court’s review of a question of takings law, petition- ers’ merits argument rests in no small part on their accu- sation that respondents’ regulation, by granting union or- ganizers access to agricultural employees on private land without a finding of necessity, does not substantially ad- vance a legitimate state interest. E.g., Pet. Br. 7-10, 31; see also Amicus Br. of Cato Institute & NFIB Small Business Legal Center 20 (proposing that per se liability for a phys- ical intrusion turn on whether the government proffers an “anti-harm justification—made in good faith and on rea- sonable grounds”). That accusation sounds in due process or Fourth Amendment reasonableness but “has no proper place in … takings jurisprudence.” Lingle, 544 U.S. at 540. The Court should not feel pressured to stretch the Tak- ings Clause and Section 1983 beyond their limits to pro- vide a remedy—an outright prohibition on state action— that was not even on the table in Loretto or its progeny. 3.C.d Packet Pg. 116 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v 6 ARGUMENT THE FOURTEENTH AMENDMENT DOES NOT MANDATE COMPENSATION WHENEVER PUBLIC OFFICIALS OR THEIR DELEGEES ENTER ONTO PRIVATE PROPERTY A. There Are Fundamental Distinctions Between Permanent Occupations And Lesser Physical Intrusions Loretto addressed a “New York law provid[ing] that a landlord must permit a cable television company to install its cable facilities upon [the landlord’s] property.” 458 U.S. at 421. The cable facilities “completely occup[ied] space immediately above and upon the roof and along the build- ing’s exterior wall,” id. at 438, leaving that private space unusable for other purposes. In finding that this govern- ment-mandated “occupation of the landlord’s property by a third party” must be compensated, id. at 440, this Court distilled and “affirm[ed] the traditional rule”: “Not every physical invasion is a taking,” but every “permanent phys- ical occupation of property is a taking,” id. at 435 n.12, 441. The Court understood that its categorical rule for per- manent occupations was a “very narrow” exception to the usual “multifactor inquiry” into takings liability for phys- ical intrusions. Loretto, 458 U.S. at 440-41. The exception was supportable because a permanent occupation “is per- haps the most serious form of invasion of an owner’s prop- erty interests.” Id. at 435. “First, the owner has no right to possess the occupied space himself, and also has no power to exclude the occupier from possession and use …. Second, the permanent physical occupation of property forever denies the owner any power to control the use of the property …. [Third,] the permanent occupation of that 3.C.d Packet Pg. 117 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v 7 space by a stranger will ordinarily empty the right [to dis- pose] of any value, since the purchaser will also be unable to make any use of the property.” Id. at 435-36 (emphases added). Thus, the government “effectively destroys each of the[] rights” of possession, use, and devise—together, the nucleus of property rights in a physical thing. Id. at 435; see also Horne v. Dep’t of Agric., 576 U.S. 350, 361-62 (2015). Shrinking the occupied space, Loretto held, alters the magnitude, but not the character, of the intrusion. A per se rule for permanent occupations is easy to ad- minister because “[t]he placement of a fixed structure on land or real property is an obvious fact that will rarely be subject to dispute.” Loretto, 458 U.S. at 437. Further, a long line of this Court’s cases “uniformly ha[d] found a taking to the extent of [a permanent physical] occupation, without regard to whether the action achieve[d] an im- portant public benefit or ha[d] only minimal economic im- pact on the owner.” Id. at 434-35. Yet a taking had not uni- formly been found in “cases involving a more temporary invasion.” Id. at 428; see also id. at 432 n.9 (distinguishing “cases of physical invasion short of permanent appropria- tion”). Owing to this body of jurisprudence, “the property owner entertains a historically rooted expectation of com- pensation” for permanent physical occupations. Id. at 441. Loretto was just as emphatic in cabining its per se rule to “the extreme form of a permanent physical occupation.” 458 U.S. at 426 (emphasis added). “The permanence and absolute exclusivity of a physical occupation distinguish it from temporary limitations on the right to exclude.” Id. at 435 n.12. Indeed, the Court discussed several lines of prec- edent in which government-authorized intrusions on pri- vate property had not required compensation. See id. at 428 (citing Sanguinetti v. United States, 264 U.S. 146, 149 3.C.d Packet Pg. 118 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v 8 (1924) (government action that may have induced more flooding of private land for short periods of time did not effect taking)); id. at 434 (citing PruneYard Shopping Center v. Robins, 447 U.S. 74, 84 (1980) (state constitution did not effect taking by authorizing temporary and limited invasion of private shopping center by protesters)); id. at 440 (citing Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 261 (1964) (federal statute barring racial dis- crimination in public accommodations, and thus authoriz- ing physical entry by guests a property owner preferred to exclude, did not effect taking)). Of particular note here, Loretto distinguished “labor cases requiring companies to permit access to union organizers,” where a per se rule is not applied because “‘[t]he “yielding” of property rights … is both temporary and limited.’” 458 U.S. at 434 n.11 (quoting Central Hardware Co. v. NLRB, 407 U.S. 539, 545 (1972)). Five years later, the Court held in Nollan v. Califor- nia Coastal Commission, 483 U.S. 825 (1987), that, “as to property reserved by its owner for private use,” id. at 831, the per se rule announced in Loretto requires that com- pensation be paid for “a permanent grant of continuous [public] access” to the property, id. at 836. In Nollan, a state commission was held to have imposed an unconstitu- tional exaction by conditioning a permit for residential de- velopment on an unrelated grant of access across a resi- dential lot to reach a public beach. Id. at 837. In applying Loretto’s per se rule to that “classic right- of-way easement,” Nollan, 483 U.S. at 832 n.1, this Court effectively rejected limiting the rule solely to possessory interests in land. Cf. Marvin M. Brandt Revocable Trust v. United States, 572 U.S. 93, 105 (2014) (“An easement is 3.C.d Packet Pg. 119 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v 9 a ‘nonpossessory right to enter and use land in the posses- sion of another and obligates the possessor not to inter- fere with the uses authorized by the easement.’” (quoting RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 1.2(1) (1998) (Restatement) (emphasis added))). But Nollan never suggested, much less held, that all nonpossessory interests (or even all easements) constitute “permanent occupations” triggering the federal Constitution’s per se compensation mandate. To the contrary, the Court as- sured that its holding was “not inconsistent with,” 483 U.S. at 832 n.1, Justice Rehnquist’s opinion in PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), which held that a state law giving protesters access to a private shop- ping center did not effect a taking, see id. at 84 (“In these circumstances, the fact that they may have ‘physically in- vaded’ appellants’ property cannot be viewed as determi- native.”).2 Thus, the “standard Takings Clause analysis” that PruneYard applied, Stop the Beach Renourishment, Inc. v. Florida Dep’t of Envtl. Protection, 560 U.S. 702, 714 (2010) (Scalia, J., plurality opinion), remained “gener- ally applicable to” takings claims arising from “nonposses- sory governmental activity,” Loretto, 458 U.S. at 440.3 2 This Court has since reframed the state law authorizing the physical invasions in PruneYard as a “regulatory restriction on use” of the shopping center by its owner. Horne, 576 U.S. at 364. That any governmental invasion can be so characterized confirms that “limiting a property owner’s right to exclude,” ibid., is not a talisman of per se takings liability. 3 Without the shackles of a per se rule, the Court could properly account for the sensitive free-speech issues presented in PruneYard. Indeed, the frequent presence of competing constitutional concerns in disputes over physical intrusions underscores the perils of a cate- gorical approach to takings liability. Cf. Martin v. City of Struthers, 319 U.S. 141 (1943) (upholding free-exercise challenge to ordinance barring Jehovah’s Witness from leafletting on private property). 3.C.d Packet Pg. 120 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v 10 The Court’s next brush with exactions, Dolan v. City of Tigard, 512 U.S. 374 (1994), applied the same modest gloss to Loretto’s per se rule that Nollan had. Dolan held that the government could not condition a development permit upon dedication of “a permanent recreational ease- ment” granting the public continuous access to land. Id. at 394. Harkening back to Loretto, the Court reasoned that this type of easement “eviscerate[s]”—as opposed to merely “regulate[s]”—a landowner’s right to exclude oth- ers. 512 U.S. at 394. That makes it “different in character from” less instrusive physical invasions like those at issue in PruneYard. Ibid. And a landowner’s historically rooted expectation of payment for a continuous “easement of pas- sage,” Loretto, 458 U.S. at 433, further supports applying a per se rule to this clearly defined, relatively rare form of physical intrusion. See Kaiser Aetna v. United States, 444 U.S. 164, 180 (1979) (requiring federal government to compensate for conversion of private pond into public aquatic park); United States v. Causby, 328 U.S. 256, 265 (1946) (same for “continuous invasions” by government aircraft into “superadjacent airspace” above private land). The guardrails on Loretto’s per se rule remained in- tact, however, and were refurbished in Arkansas Game & Fish Commission v. United States, 568 U.S. 23 (2012). A unanimous Court there held that a taking may occur “when government-induced flood invasions, although re- petitive, are temporary.” Id. at 26. Flooding cases are no different “from the mine run of takings claims,” id. at 35, meaning that the government’s liability for “temporary physical invasion” is neither foreclosed nor assured, id. at 38. Liability depends on several factors: “time” (i.e., the invasion’s duration), “[s]everity of the interference,” “the character of the land at issue,” “the owner’s ‘reasonable 3.C.d Packet Pg. 121 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v 11 investment-backed expectations’ regarding the land’s use,” and “the degree to which the invasion is intended or is the foreseeable result of authorized government ac- tion.” Id. at 38-39. In short, Arkansas Game doubled down on Loretto’s well founded distinction between “permanent physical occupations” and “temporary invasions of prop- erty,” id. at 36—the same distinction that petitioners now insist the Court must erase. B. Petitioners’ Argument That Any Interference With The Right To Exclude Effects A Taking Is Unsound The “common touchstone” among branches of takings jurisprudence is that each aims “to identify regulatory ac- tions that are functionally equivalent to the classic taking in which government directly appropriates private prop- erty or ousts the owner from his domain.” Lingle, 544 U.S. at 539 (emphasis added); see also Pumpelly v. Green Bay & Miss. Canal Co., 80 U.S. 166, 177-81 (1871). Cf. Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 612 (2013) (holding that governments can violate the Takings Clause by demanding “‘in lieu of’ fees” that “are function- ally equivalent to other types of land use exactions”). Con- sidering function alongside form gives courts flexibility to tailor takings liability to “the nearly infinite variety of ways in which government actions or regulations can af- fect property interests.” Arkansas Game, 568 U.S. at 31. And, as Nollan and Dolan illustrate, even supposedly bright-line liability rules remain subject to refinement based on functional considerations. See supra, pages 8-10. Petitioners thus cut sharply against the constitutional grain in attempting to refashion every physical entry onto private land as a discrete, “permanent,” and automatically compensable “easement.” That maneuver does nothing to 3.C.d Packet Pg. 122 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v 12 aid a court in discerning whether a given intrusion (or se- ries of intrusions) is the functional equivalent, from the landowner’s perspective, of a classic taking. Cf. Stop the Beach, 560 U.S. at 713 & n.5 (Scalia, J., plurality opinion) (deeming “easement” label irrelevant to takings liability). Petitioners’ everything-is-an-easement mantra simply “create[s] a litigation-specific definition of ‘property’ de- signed for a claim under the Takings Clause.” Murr v. Wisconsin, 137 S. Ct. 1933, 1955 (2017) (Roberts, C.J., dis- senting). To be sure, the right to exclude others is “one … essential stick[] in the bundle of rights that are commonly characterized as property.” Dolan, 512 U.S. at 384 (em- phasis added). And total destruction of even that one stick, without more, results in a taking. Loretto, 458 U.S. at 435- 36.4 But a landowner cannot, in the pursuit of compensa- tion, grind that unitary stick into sawdust and then proffer a lone grain as dispositive evidence of a constitutional vio- lation. Cf. Murr, 137 S. Ct. at 1952 (Roberts, C.J., dissent- ing) (“If owners could define the relevant ‘private prop- erty’ at issue as the specific ‘strand’ that the challenged regulation affects, they could convert nearly all regula- tions into per se takings.”). Yet that is precisely what pe- titioners propose: to limit “the scope of an easement … to the terms of the [regulation] that created it.” Pet. Br. 23. Apart from its circularity, petitioners’ theory unmoors Loretto’s per se rule from its foundations. An incidental 4 Petitioners are wrong to suggest (Br. 19) that destruction of any stick in the bundle of property rights is per se compensable. See, e.g., Hodel v. Irving, 481 U.S. 704, 712-18 (1987) (applying multifactor test to adjudicate takings liability under federal statute that worked a “complete abolition of both the descent and devise of a particular class of property”); Andrus v. Allard, 444 U.S. 51, 64-68 (1979) (finding no taking based on federal statute prohibiting sale of personal property). 3.C.d Packet Pg. 123 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v 13 interference with the right to exclude occasioned by an of- ficial’s temporary entry (or intermittent entries) onto land does not eviscerate, and may not even impair, the triad of ownership rights on which the Loretto rule rests: posses- sion, use, and devise. First, it is axiomatic that any physical intrusion classi- fiable as an easement—a “nonpossessory right,” Restate- ment § 1.2(1)—does not disturb the landowner’s right of possession. Notably, petitioners did not seek this Court’s review of their claim that respondents’ regulation “consti- tuted an unlawful seizure of their property” under the Fourth Amendment, Pet. Br. 12 n.11, due to some “mean- ingful interference with [their] possessory interests,” United States v. Jones, 565 U.S. 400, 408 n.5 (2012) (quot- ing United States v. Jacobsen, 466 U.S. 109, 113 (1984)). Second, time-limited entries onto private land by pub- lic officials or their delegees ordinarily are tailored to min- imize or avoid interfering with the owner’s use of the land. In the rare case where such physical invasions “interfere … drastically with the [landowners’] use of their prop- erty,” Nollan, 483 U.S. at 836, a taking will be found. E.g., Kaiser Aetna, 444 U.S. at 179 (finding a taking where the federal government had effectively “take[n] over the man- agement of the landowner’s property” by granting the public a continuous right of acess). In this respect, Nollan and Dolan recall the other per se rule for federal takings liability: Even absent a physical intrusion, this Court “ha[s] found categorical treatment appropriate … where regulation denies all economically beneficial or productive use of land.” Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992). The unique character of phys- ical intrusions may dictate per se liability in a somewhat wider class of cases, namely, those in which government 3.C.d Packet Pg. 124 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v 14 action drastically interferes with (but does not entirely de- stroy) an owner’s ability to use property. But that is a far cry from concluding, as petitioners do, that every physical intrusion, no matter how marginal its impact on an owner’s right to use property, is compensable. Put more concretely, petitioners seek to make takings liability automatic not only when the government permits entry for up to “360 hours a year,” Pet. App. A-25, as does respondents’ regulation, but also if the government au- thorizes regular and predictable entries up to 360 minutes per year, or even just 360 seconds. This Court might well find that an entry authorized for up to 360 days per year is functionally a permanent, continuous easement giving rise to per se takings liability—i.e., that Loretto’s “cate- gorical rule does not depend on all day, every day accessi- bility.” Pet. Br. 15. But that would not make categorical treatment the answer for far lesser intrusions. See Arkan- sas Game, 568 U.S. at 38 (“When … temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in deter- mining the existence vel non of a compensable taking.”). Third, only in rare cases will government-authorized entries onto private land affect the right of devise. The traditional test for whether a servitude runs with the land is whether it “touch[es] or concern[s] the thing devised,” or is instead “merely collateral to the land.” Spencer’s Case, 77 Eng. Rep. 72, 74 (K.B. 1583). This requirement that servitudes be “intimately bound up with the land” in order to convey, Charles E. Clark, REAL COVENANTS AND OTHER INTERESTS WHICH “RUN WITH LAND” 206 app. I (2d ed. 1947), carries forward “the common law’s tradi- tional distrust of encumbrances on land,” A. Dan Tarlock, 3.C.d Packet Pg. 125 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v 15 Touch and Concern Is Dead, Long Live the Doctrine, 77 NEB. L. REV. 804, 817 (1998).5 When public officials or their delegees must enter onto private land, the reason is almost invariably “collateral” to the land and pertains instead to persons located or activi- ties conducted thereon. See infra, at 17-19. Labeling such intrusions “easements” does not accord with a practical— or even a formalistic—understanding of that term. See Restatement § 1.2(3) (“The burden of an easement … is always appurtenant.”). County deed books are peppered with classic rights-of-way of the type presented in Nollan and Dolan, but no sober government lawyer would record an instrument authorizing temporary (or even intermit- tent) physical intrusions whose relationship to land is merely incidental, e.g., periodic inspections of businesses or visits to children in foster care. Petitioners contend (Br. 16) that applying a per se rule to all physical invasions will eliminate “arbitrary line- drawing” in determinations of the government’s takings liability. But their proposal merely shifts the locus of line- drawing from Arkansas Game’s nuanced, multifactor test to the fuzzy dividing line between takings and trespasses, whose placement would become dispositive in every case. The interwoven development of takings and trespass law, see City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 715-17 (1999), blurs the distinction be- tween takings and trespasses and has forced lower courts to craft balancing tests to differentiate them, e.g., Ridge 5 The most recent Restatement of Property advocates moving be- yond the touch-or-concern test “as a termination doctrine” used to in- validate servitudes. Restatement § 3.2 cmt. b. But the drafters of that treatise cast no doubt on the ancient origin or the ongoing importance of the touch-or-concern test in the numerous jurisdictions that use it. 3.C.d Packet Pg. 126 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v 16 Line, Inc. v. United States, 346 F.3d 1346, 1355-56 (Fed. Cir. 2003)—exactly the sort of tests petitioners claim their theory expunges from physical takings jurisprudence.6 Petitioners’ approach also lacks “tradition to commend it.” Loretto, 458 U.S. at 435. In this Court’s cases, “[a] tak- ing has always been found only” in the event of permanent occupation, not in the event of lesser physical intrusions. Id. at 428; see John Echeverria, What is a Physical Tak- ing?, 54 U.C. DAVIS L. REV. 731, 749-55 (2020) (catalogu- ing decisions eschewing per se approach to physical tak- ings liability). Nothing in those cases hints that categori- cal treatment would have applied to all physical invasions, if only landowners’ attorneys had the ingenuity to repack- age a temporary invasion as a “permanent” appropriation of a purpose-built property interest. In sum, petitioners’ proposed approach to imperma- nent physical intrusions is doctrinally and historically un- sound. The Court should retain its longstanding approach, most recently distilled in Arkansas Game, of considering a multitude of factors when deciding whether temporary or intermittent invasions are functionally equivalent to an appropriation or ouster of a property owner from its land. 6 Petitioners’ own formulation of the taking-trespass distinction is impenetrable. They do not explain, for example, how respondents’ access regulation can have “appropriated an easement across the property of all agricultural businesses in California, irrespective of the accessibility of their employees,” Pet. Br. 7, if a parallel provision of the National Labor Relations Act, which applies only when employ- ees are otherwise inaccessible, “cannot reasonably be characterized as an easement” rather than a series of trespasses, id. at 31 n.19. Like respondents’ takings liability more generally, the classification of the union organizers’ intrusions as a taking or trespass cannot depend on whether the regulation allowing those intrusions is directed at “con- ditions that … no longer exist today.” Pet. Br. 10; see supra, page 5. 3.C.d Packet Pg. 127 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v 17 C. Routine Exercises Of State Police Power Call For Public Officials Or Their Delegees To Enter Onto Private Property Today, as at the time the Fourteenth Amendment was ratified, the general police power reserved to the States “covers ‘protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State.’” Slaughter–House Cases, 16 Wall. 36, 62 (1872) (quotation omitted). Affording those protections of- ten requires public officials to temporarily enter onto pri- vate land under circumstances never thought to give rise to takings liability, and certainly not automatically. On the contrary, this Court has rebuffed entreaties to create per se takings liability rules that “would undoubtedly re- quire changes in numerous practices that have long been considered permissible exercises of police power.” Tahoe- Sierra Preservation Council, Inc. v. Tahoe Reg’l Plan- ning Agency, 535 U.S. 302, 335 (2002); accord First Eng- lish Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304, 321 (1987). Accepting petitioners’ entreaty would usher in a panoply of federal constitutional claims against everyday activities of state and local governments. For example, countless statutes and regulations direct public officials to conduct periodic, often unannounced, in- spections of residential and commercial properties to pro- tect health and safety. See v. City of Seattle, 387 U.S. 541, 543-44 (1967) (noting prevalence of inspection laws).7 Most 7 E.g., Iowa Code § 123.30(1)(b) (liquor stores); Ohio Rev. Code §§ 3721.02(B)(1) (nursing homes), 4737.04(C) (scrap-metal dealers); Utah Code § 13-32a-101 (second-hand dealers); Wash. Rev. Code § 59.18.125 (rental housing); Alamosa, Colo. Code § 12-35 (mobile- home parks); Newark, Cal. Code § 5.24.150 (massage parlors); Food & Drug Administration, Food Code 2017, § 8-402.11 (model code for restaurant inspections adopted by many jurisdictions). 3.C.d Packet Pg. 128 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v 18 of these inspections are “searches” subject to the stric- tures of the Fourth Amendment. See, e.g., id. at 545-46 (requiring warrant for commercial inspection); Camara v. Municipal Court, 387 U.S. 523, 538-39 (1967) (same for residential inspection).8 Yet amici have not been able to find any case deeming a “regular and predictable,” Pet. Br. 1, physical inspection compensable under the Takings Clause of the Fifth Amendment. That is unsurprising be- cause a taking for public use is an “infinitely more intru- sive step” than a workaday search. Kelo v. City of New London, 545 U.S. 469, 518 (2005) (Thomas, J., dissenting). These public-inspection regimes would collapse if the government had to pay landowners for every inspection. The advance or concurrent compensation required by the Takings Clause, see Knick, 139 S. Ct. at 2177, would not only be impracticable to procure, it would be self-defeat- ing in cases where “surprise is crucial if the regulatory scheme … is to function at all,” New York v. Burger, 482 U.S. 691, 710 (1987). State or local inspectors accordingly would be asked to violate the federal Constitution by en- tering onto private land to do their jobs, after which land- owners could sue to recover compensation. It is cold com- fort that governments would prevail in many of those suits on the ground that “the owner’s pecuniary loss … is zero.” Brown v. Legal Foundation, 538 U.S. 216, 240 (2003). The time and expense of reaching that conclusion with respect 8 Inspection laws are expressly recognized by the federal Consti- tution, which empowers States to collect duties from merchants to cover the costs of inspecting goods. U.S. Const. art. I, § 10, cl. 2; see also Boyd v. United States, 116 U.S. 616, 623 (1886) (discussing act of the First Congress that authorized entry onto private property to in- spect goods). Petitioners’ categorical rule for physical invasions would turn that constitutional provision on its head by compelling States to compensate merchants for interferences with their right to exclude. 3.C.d Packet Pg. 129 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v 19 to a specific property, let alone a mass of properties, would drain government resources immeasurably. Other examples of temporary or intermittent physical invasions abound. Home visits by public officials or their delegees are made for a variety of reasons, most often the protection of minors. See, e.g., Wyman v. James, 400 U.S. 309, 318-20 (1971).9 The physical invasion is only incidental to the visit’s purpose: to meet with and protect persons. Here again, it appears that no court has ever determined that such visitations run afoul of the Takings Clause. Existing takings doctrine fully accommodates these routine exercises of police power, without absolving state or local governments of their duty to pay compensation in truly unusual cases where physical intrusions become “oc- cupations,” Loretto, 458 U.S. at 430, or are otherwise so severe as to be indistinguishable from appropriations of property. This Court should not make takings liability for physical intrusions the rule rather than the exception. CONCLUSION The petition should be dismissed as improvidently granted. Alternatively, this Court should reaffirm that li- ability under the federal Takings Clause for physical in- trusions by public officials or their delegees is to be de- cided using the factors set forth in Arkansas Game, unless the intrusion constitutes a permanent occupation. 9 See, e.g., Cal. Health & Safety Code § 1596.852 (home day cares); Neb. Rev. Stat. § 43-1303(5) (foster homes); N.J. Stat. § 30:4C-12 (child-welfare visits); Idaho Dep’t of Health & Welfare v. Doe, 244 P.3d 180, 183 (Idaho 2010) (reciting typical court order requiring par- ents to permit home visits by guardian ad litem and public officials). 3.C.d Packet Pg. 130 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v 20 Respectfully submitted, January 7, 2021 Matthew Littleton Counsel of Record David T. Goldberg Donahue, Goldberg, Weaver & Littleton 1008 Pennsylvania Ave SE Washington, DC 20003 (202) 683-6895 matt@donahuegoldberg.com Lisa Soronen State & Local Legal Center 444 North Capitol St NW Washington, DC 20001 Charles W. Thompson, Jr. Amanda Kellar Karras International Municipal Lawyers Association 51 Monroe St, Suite 404 Rockville, MD 20850 3.C.d Packet Pg. 131 Attachment: AttachmentD--Counties-CitiesAmicus Brief (4421 : Amicus Recommendation - Cedar Point Nursery v