March 30, 2021

A Property Right To Exclude Others: Cedar Point Nursery’s Implications For Regulatory Enforcement

Posted March 30, 2021 by Theodore L. Garrett

The Supreme Court recently heard oral argument in Cedar Point Nursery v. Hassid (No. 20-107), a case that has generated considerable amicus participation and press coverage.  In that case, union organizers, relying on a California law, entered the property of a fruit nursery with bullhorns in hand in order to urge unionization directly to the employees.  Cedar Point argued that the California access regulation is a taking of property under the Fifth Amendment because it interferes with its fundamental right to exclude persons it does not wish to have on its property.  The Ninth Circuit rejected the takings claim, and the Supreme Court granted certiorari.  During oral argument on March 22, the Court appeared to be seeking a way to draw a line between per se takings and the government’s right to access property for traditional police and enforcement purposes.  How the Court’s opinion deals with this issue remains to be seen.   

The Commonwealth of Virginia’s amicus brief states that the Cedar Point argument is radical in its breadth and would raise constitutional questions about a wide array of state and federal health and safety regulatory programs that depend on government inspection of private property.  The Commonwealth urges affirmance of the Court of Appeals decision because any effort to limit petitioner’s “right to exclude” position would require developing a new framework for takings claims. 

 The U.S. Chamber of Commerce submitted an amicus brief supporting Cedar Point noting, however, that under Supreme Court precedent the government may condition a license or approval on reasonable physical access if germane to the purpose of the benefit conferred.  The United States’ amicus brief similarly argues that the government may require access as a condition of using property in a certain way if the condition has the appropriate nexus and proportionality, citing Ruckelshaus v. Monsanto, 467 U.S. 986 (1984).  After the U.S. brief was filed in January 2021, the Solicitor General on February 12, 2021 submitted a short letter stating that the United States has reconsidered its position and supports affirmance because the intrusion was temporary and limited.

During oral argument, the Justices pressed counsel for both sides on how to draw a line between permissible property intrusions and Fifth Amendment takings.  Counsel for Cedar Point argued that reasonable government inspections were not implicated by the right to exclude because the right to be free from government inspections was not a property right under common law.  This prompted questions from the Court on how one would apply the “common law” test to situations that did not exist when the Fifth Amendment was adopted, such as access to space ships or driverless cars (Justice Breyer), or whether the intrusion by a labor union in this case would have been considered an easement (Justice Alito) when the Fifth Amendment was adopted.  Justice Kavanaugh suggested that the nursery could win under NRLB v. Babcock & Wilcox, 351 U.S. 105 (1956) without relying on a broad “right to exclude” because the California law did not require a showing that alternative means of communication with workers does not exist.  However, Cedar Point’s counsel seemed reluctant to accept that lifeline, apparently preferring that the Court adopt a broader property rights approach. 

Counsel for the State of California argued that a per se rule was inappropriate, urging that the courts engage in an ad hoc inquiry concerning the degree of intrusion.  However, Justice Sotomayor stated that an ad hoc approach “won’t satisfy many people.”  If the ability to intrude 365/24 was per se a taking, Justice Kagan asked, when does it stop?  At 120 days?  Some other period?  The Justices raised a variety of potential hypotheticals they presumably found troublesome from a takings perspective, such as giving police access to private property for training purposes (Justice Thomas), allowing public intrusion on private property to access a public beach (Justice Alito), and allowing people to protest 120 days/year on corner property because it is visible to passing traffic (Justice Barrett).    

While it is difficult to predict the outcome of a case based on oral argument, a majority of Justices seemed concerned with the California law.  If the Ninth Circuit is reversed, the Court’s reasoning will be scrutinized.  Will reversal call into question the constitutionality of the right to access and inspection under numerous health and safety statutes?  Will the Supreme Court’s opinion preserve the ability of the government to inspect a facility for compliance or condition a license on the right to reasonable physical access without triggering a Fifth Amendment issue?  Stay tuned.