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Big Win for Agricultural Property Rights

Published: June 24th, 2021

By: Dennis G. Corrick John L. Wharton

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The U.S. Supreme Court yesterday ruled that a nearly 50-year-old California regulation which requires agricultural businesses to allow union organizers to enter on their property for a minimum number of hours and days each year, is an unconstitutional taking without compensation. In this case, a California nursery and a shipping company challenged the regulation as essentially creating an easement across their private property without their consent and without any compensation.

The Court held that requiring private property owners to allow third parties access to their property to without their consent falls squarely within the Fifth Amendment of the United States Constitution, which they said requires compensation any time “the government physically acquires private property for public use.” . The Court found that the regulation, by giving union organizers “a right to physically enter and occupy the growers land for three hours per day, 120 days per year” takes, without compensation, a right of the property owners – the right to exclude or withhold consent from third parties entering upon private property.

The Court was unpersuaded by the state’s arguments that the transitory nature of the access requirement made the effect of the regulation something less than a compensable taking, and was also unconcerned that the ruling might prevent the sort of regulatory access that state and federal governments exercise with regard to certain agricultural properties, reasoning that the latter was categorically different from the regulation before the Court, because such access was normally a condition of the regulatory licenses and permits held by the property owner.

The vote in this case was 6-3, with three Justices dissenting. Regardless, the majority’s determination, that “(w)e cannot agree that the right to exclude is an empty formality, subject to modification at the government’s pleasure”, is an important victory for property rights activists. Interestingly, the decision could be interpreted as not rendering such mandatory union access strictly impermissible, but rather that any regulation ostensibly allowing such access must also have some provision for compensation.

The case was appealed from the Ninth Circuit Court of Appeals and is styled Cedar Point Nursery v. Hassid.