The Supreme Court wrestled with the question of whether a California law allowing access to agricultural property to organize employees should require a payment under the Fifth Amendment, which forbids the taking of private property without just compensation.

The justices had pointed questions for both lawyers in the case — Joshua Thompson of the Pacific Legal Foundation, representing Cedar Point Nursery and Fowler Packing Co., and Michael Mongan, California’s solicitor general. (You can listen to the arguments here.)

A question central to the case is whether the law — which allows access for union organizers for three hours a day, 120 days a year, and which prohibits interference with work activities — is in effect a “physical taking” for which compensation is due.

The issue for the court, however, is that its precedent holds that regulations have to either physically appropriate property on a permanent basis or deprive landowners of all beneficial use of their property in order to be considered a taking.

“I think that this is not a classical easement,” said Mongan. “It is not appurtenant to any particular parcel of land. It is a regulatory scheme that applies to a particular type of business conducted on the land, and the access is not to a particular pathway or parcel, it is to the employees where they are.”

In questioning by Justice Samuel Alito, Mongan said it would be “deeply problematic” if the court adopted a rule finding a per se taking “for any sort of authorized intrusion, including a limited intrusion” authorized by regulations.

Chief Justice John Roberts brought up an issue raised by many of the parties supporting the ruling by California’s Ag Labor Relations Board and the Ninth Circuit Court of Appeals' upholding of that ruling, that to find a taking in the case would prevent government agencies from carrying out their regulatory duties.

Roberts asked why promoting peaceful labor relations does not fall under the same category as safety inspections.

“Because there was no right at common law to allow third-party union organizers onto one’s property,” Thompson said. “That is a right that when the government takes, it has to pay compensation.” 

Common law, he told Agri-Pulse after the arguments, is hard to define, but "what it means is that there are certain principles that are sort of inherent in all property. Normally, you have the right to exclude, but if a criminal runs onto your property and hides in your house, the police can certainly follow him in there and retrieve him."

Thompson, however, distinguished the facts of the case from government agencies’ right to conduct regulatory inspections, saying common law prohibits owners from denying the government the right to enter their property.

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Thompson said he could not say how much compensation would be due, but he did not think it would be “minimal.” Nevertheless, he said that as the court decided in a previous case, “even a minimal invasion of the right to exclude and even a minimal denial of that right would merit compensation.”

Justice Elena Kagan said she did not think a denial of the right to exclude the union representatives “counts as a discrete interest in property.”

“The right to exclude is one of the sticks in the bundle that a property owner has, but usually when people talk about discrete interests in property. It's like a legal form," such as an easement, she said.

Numerous briefs supporting both sides have been filed. Ag groups including Western Growers, the American Farm Bureau Federation and California Farm Bureau Federation are backing the petitioner agribusinesses in the case, while law professors, labor advocates and five U.S. senators are backing the state. The states of Oklahoma, Alabama, Arizona, Arkansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, South Carolina and Texas filed a brief supporting the petitioners, while Virginia, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington backed California.

The United States switched its position about a month before the argument, withdrawing its support for the agribusinesses and saying the regulation does not result in a taking.

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