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In a recent issued decision, the U. S. Supreme Court determined that a regulation may amount to a taking of private property if and when the regulation deliberately interferes with important ownership rights possessed by the property owner. In CEDAR POINT NURSERY ET AL. v. HASSID ET AL., No 20-107 (U.S. June 23, 2021), the U.S. Supreme Court decided that a regulatory scheme promulgated by California interfered with the basic property rights of commercial farmers and reinstated the complaint filed against California by these farmers.
        Cal Code Regs, Title 8, Section 20900(c)(1)(C) 2020 (“the Regulation”) provides that agricultural employers must permit union organizers onto the farm premises for three hours per day for a yearly total of 120 hours. This amounts to four 30-day periods per year when the union organizers may approach employees. The Regulation states that the unions may send a crew of two organizers per work during the following hours: one hour before work, one hour during lunch, and one hour after work. Activities under the Regulation are governed by Agricultural Labor Relations Board (“the Board”). Unions are obligated to send prior written notice of the intention to appear at a farm both to the Board and to the employer. Any interference with this right of access may result in sanctions to the employer.
         Plaintiff Cedar Point Nursery (“Cedar Point”) operates a strawberry farm employing 400 seasonal workers and 100 full-time workers. None of the employees resides on Cedar Point’s premises. In October 2015 at 5:00am, United Farm workers entered Cedar Point’s property without providing the required notice and interrupted employees during the preparation of strawberry plants. These union members called to the employees using bullhorns which disrupted Cedar Point’s operations. Some of the employees left the premises and others joined in a union protest. Cedar Point filed a complaint with the Board objecting to this labor practice.
        Plaintiff Fowler Packing (“Fowler”), a grape and citrus producer, employs between 1800-2500 field workers who do not live on Fowler’s premises. In October 2015, union organizers attempted to enter Fowler’s premises pursuant to the Regulation but were blocked by Fowler. Fowler also filed a complaint regarding the interfering union activity with the Board. This complaint requested injunctive relief against union entry onto private property and claimed that union entry amounted to an easement.
        When Cedar Point’s complaint to the Board was denied, both Cedar Point and Fowler filed an action in U.S. District Court, arguing that the Regulation amounted to a regulatory taking per se. The U.S. District Court dismissed the complaint holding that the Regulation did not amount to a taking per se as, the public was not invited onto the employer’s premises. This holding was affirmed by the Ninth Circuit.
         On certiorari to the Supreme Court, the majority found that the Regulation amounted to a taking per se, because it denied an owner a fundamental right of property ownership – the right of exclusion. The Supreme Court opined that the right to exclude is one of the most treasured rights of ownership. See Loretto v. Teleprompter et al., 458 U.S. 419, 435 (1982). Interference with a basic property right of ownership amounts to a taking under the Fifth and Fourteenth Amendments. The Supreme Court found that government does have the right to regulate an owner’s use of private property, but that such regulation may not extend to elimination of fundamental property rights. The Supreme Court further found that the timing of the physical appropriation is not key to the taking. The duration of the appropriation speaks only to the amount of compensation an owner is entitled to as a result of appropriation. The Supreme Court reinstated that complaint. 
        The Supreme Court did not abrogate the Regulation, nor did the Supreme Court direct that the Regulation be rewritten. The question of the appropriateness then of the Regulation is still in doubt. 

- by Davida Scher.
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Words to Live By, Sort Of

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