Temporary Access and Permanent Consequences: The Misapplication of Takings Jurisprudence to State Regulations That Benefit the Public Welfare.

• Author: Ceriotti, Maria

1. INTRODUCTION

   In 1975, California enacted the Agricultural Labor Relations Act. (1) The Act, along with many regulations to aid in its enforcement, came after years of infighting between property owners and agriculture workers for fair pay and better treatment. (2) Deplorable conditions included hourly wages at $0.90/hour, inadequate working standards such as a lack of toilets and segregated housing, and poor treatment from the growers. (3) Cesar Chavez organized what is now the United Farm Workers labor organization, which helps agriculture workers across the country collectively bargain and secure their rights, fair pay, and adequate working conditions. (4)

   In order to ensure agriculture employees were aware of their rights following the Agricultural Labor Relations Act, the state created the Agricultural Relations Board. (5) The Board developed a set of regulations that allowed labor organizations to enter the employer's property to solicit the employees to join the union, educate the workers on their rights, and give resources on how to communicate with labor personnel. (6) While the 1975 Act was a win for agriculture workers and labor organizations, the rate of union membership among agriculture employees today is around only one percent. (7) According to the former head of the United Farm Workers, the low membership is due to a lack of knowledge of the rights and provisions contained in the law, as well as employer intimidation and high worker turnover as the employees seek better work with less harsh conditions. (8) In Cedar Point Nursery v. Hassid, the Supreme Court of the United States held that the provision of the 1975 Act which allowed union members onto farm owners' land was an unconstitutional physical taking under the Fifth Amendment, prohibiting further implementation of this provision unless just compensation is paid to the landowner. (9) The Cedar Point holding is another obstacle to accomplishing a sustainable pro-union labor law and protecting agriculture workers specifically. However, the precedent set by the Court will impact more than just union workers. Other regulations put in place by state and local legislatures to protect vulnerable populations in similar ways may soon be called into question in the wake of Cedar Point.

   The Court's misapplication of takings jurisprudence in Cedar Point serves as a win for admirers of strict individual property rights at the expense of the common good and general welfare of the citizenry. By implying that a "right to exclude" restriction is a physical appropriation of a property interest in land to another, the Court's decision will cause state and local governments to scramble to perform basic functions that their populations have come to rely upon for support and safety. In its most basic form, the Court has now divested the legislature of its ability to govern in the best interests of the people and appropriated to itself the judgment on legislative benefits under the cover of property rights.

   [https://perma.cc/3VWL-D958]. These rates of membership have always been low, with its highest membership rate being around two percent in the 1970s. Melissa Montalvo & Nigel Duara, In familiar refrain, United Farm Workers grapples with how to grow, CAL MATTERS (Jan. 18, 2022), https://calmatters.org/projects/united-farm-workers-union/ [https://perma.cc/H2BV-UNM3].

   Part II of this Note discusses the relevant factual and procedural background of Cedar Point. Part III briefly provides the legal history of the Takings Clause. Part IV examines both the majority and dissenting opinions in Cedar Point. And finally, Part V argues that, due to the Court's misguided interpretation of takings jurisprudence, state and local governments will be unduly hindered in their ability to create laws that aid in the promotion of the public welfare.

2. FACTS AND HOLDING

   On an early morning in October 2015, members of United Farm Workers ("UFW") entered the property of Cedar Point Nursey ("Cedar Point") to inform Cedar Point employees of their rights. (10) Cedar Point is a strawberry grower in California and, at the time, employed roughly 100 full-time employees and 400 seasonal employees. (11) None of those employees lived on Cedar Point's property. (12) UFW is a farm workers' union founded by Cesar Chavez and others in the 1960s. (13) It is the largest farm workers' union in the United States, with the majority of its members working and living in California. (14) When UFW members entered Cedar Point's property, they entered the trim shed where workers were harvesting strawberry plants. (15) According to Cedar Point, UFW members came without notice, used bullhorns and other tactics to disturb the operations of the farm, and encouraged some of Cedar Point's workers to join in on their protest. (16)

   Similarly, in July 2015, UFW members attempted to enter the property of Fowler Packing Company ("Fowler"). (17) Fowler grows and ships grapes and citrus fruits. (18) It employed around 1,800-2,500 employees in its field operations and roughly 500 employees in its packing facility at the time. (19) Similar to Cedar Point, none of Fowler's employees lived on the farm's property. (20) Fowler blocked UFW's entry to the property. (21)

   Both of these situations resulted in a claim involving a California regulation that allows labor organizations to enter an agriculture employer's property in order to solicit support for unionization. (22) The regulation serves as a practical response to the California Labor Relations Act of 1975, which gives agricultural employees the right to self-organize and makes it an unfair labor practice for the employer to interfere with that right. (23) Under the regulation, a labor organization may "take access" to meet and talk with agriculture employees subject to certain conditions. (24) These conditions include: (1) organizations may enter no more than four, thirty-day periods in a calendar year; (2) written notice must be provided to the Agricultural Labor Relations Board ("the Board"); (3) a copy of that notice must be served to the employer; and (4) the labor organization may enter up to only one hour before work, one hour during the lunch break, and one hour after work. (25) Additionally, the labor organizers cannot take part in conduct that disrupts the employer's operation. (26)

   Cedar Point filed a charge before the Board against UFW for taking access to its property without giving notice as required by the regulation. (27) UFW responded with a charge of its own, claiming that Cedar Point had committed an unfair labor practice. (28) After Fowler prohibited UFW members from entering the property, UFW filed an additional unfair labor practice charge, but later withdrew the claim. (29) Under the belief that UFW would attempt to enter their land again, both growers filed suit in the federal district court to obtain declaratory and injunctive relief to prevent the Board from enforcing its regulation against them. (30) Cedar Point and Fowler both believed the regulation constituted a per se physical taking of their land--a violation of the Takings Clause of the Fifth Amendment of the United States Constitution. (31) Primarily, they argued that granting access was equivalent to granting an easement to the property without giving the growers just compensation as required under the Fifth and Fourteenth Amendments. (32)

   The district court denied the preliminary injunction and granted the Board's motion to dismiss. (33) The district court found that the access regulation was not a physical per se taking because it did not grant access in a "permanent and continuous manner." (34) Instead, the court believed the challenge should have been analyzed under the Penn Central multifactor balancing test--which considers economic impact, extent of interference in investment-backed expectations, and the character of the government involvement in a regulatory taking--and concluded that the growers made no attempt to satisfy that test. (35)

   The Court of Appeals for the Ninth Circuit affirmed. (36) The court identified three categories of takings: "regulations that impose permanent physical invasions, regulations that deprive an owner of all economically beneficial use of his property, and the remainder of regulatory actions." (37) The court further explained that the first two categories constituted a per se physical taking, but the third required analysis under the Penn Central test. (38) Because the access was not to the public at large and was not continuous or permanent, the court reasoned it did not fit into the first category. (39) Additionally, Cedar Point and Fowler did not make a claim that the regulation deprived them of all economically beneficial use of their land, so the alleged taking also did not fall under the second category. (40) Therefore, the Ninth Circuit found it was not a per se taking. (41) The Ninth Circuit did not rule on whether it was a regulatory taking under the Penn Central test because neither Cedar Point nor Fowler made a claim that the regulation was a taking under that test. (42) Cedar Point then petitioned the Supreme Court, which granted certiorari. (43)

   The Supreme Court ultimately reversed the lower courts' holding. (44) While the Court agreed that a use restriction is to be analyzed under the balancing test of Penn Central to determine whether it is a taking, it disagreed that the regulation at issue was merely a use restriction. (45) Rather, the Court concluded that the regulation provided a physical appropriation of the property. (46) According to the Court, the regulation permitted a physical appropriation of an owner's right to exclude others from her property. (47) Under the Court's theory of takings law, UFW's conduct constituted a per se physical taking that required just compensation under the Fifth Amendment. (48)

3. LEGAL BACKGROUND

   To fully appreciate the effect this decision has on the future of property rights...