The Supreme Court rules that, even when of limited duration, government-authorized invasions of private property by third parties are physical takings requiring just compensation.
Cedar Point Nursery et al. vs. Hassid (U.S. Supreme Court)
This was a takings case accepted by the Court on the merits, and it arose, oddly enough, out of California labor law. The question was whether an uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment. NELF argued yes, and the Court agreed.
In 1975, California issued a regulation giving union organizers a right to access the property of agricultural employers. The law mandated that agricultural businesses must allow labor organizers onto their property three times a day for no more than three hours per day for up to 120 days each year. The regulation provides no mechanism for compensation. But for the law, the plaintiff businesses would forbid union access to their property.
The businesses sued, seeking to halt enforcement of the law on the grounds that it effects an uncompensated taking by physically seizing an easement for the benefit of union organizers. The district court dismissed the complaint for failure to state a claim.
A divided panel of the Ninth Circuit held that even if the regulation did create an easement, it would not effect a per se physical taking because it does not allow occupation “24 hours a day, 365 days a year.” The court suggested that the claim would have been better formulated as a Penn Central regulatory taking, but made clear that such a claim would also fail. Eight judges dissented strongly from denial of rehearing en banc.
Finding that Supreme Court law is often vague, equivocal, or even contradictory on many points involved in the analysis of the question, NELF filed an amicus brief that focused on three cases relied upon by the defendants and the Ninth Circuit. NELF hoped to assist the plaintiffs by dispelling the confusion that has plagued interpretations of these three cases and has permitted them to be used to negate physical takings claims such as theirs.
NELF first elucidated Portsmouth Harbor Land and Hotel Co. v. United States, 260 U.S. 327 (1922). Carefully examining the text of the decision against the history of the underlying dispute, NELF showed that the Court focused exclusively on the physical character of the government’s actions in firing coastal artillery over private property and on whether these actions could be seen to imply an intention physically to subordinate the property to the public interest, i.e., to take an easement for the government. The decision decided that point in the affirmative and did not perform a regulatory analysis.
Similarly, NELF showed that in United States v. Causby, 328 U.S. 256 (1946), the Court explicitly declared it would follow the “philosophy of Portsmouth Harbor” and thus it considered whether direct airspace invasions by military aircraft were an exercise of such dominion over the private property below that an easement of flight had been imposed physically on the property by the government. As in Portsmouth Harbor, it was character of the government’s action as a “direct invasion” that determined the question whether there was a taking.
Finally, NELF discussed Kaiser Aetna v. United States, 444 U.S. 164 (1979). There the Court analyzed an imposed navigational servitude that would have granted the public free access to a private marina against the will of the owners. NELF showed that the Court treated the public access as a physical invasion and as a direct appropriation of a property interest. For such an easement, the Court ruled, the government would have to pay compensation. NELF drew particular attention to the Kaiser Aetna Court’s own reliance on four cases involving physical seizure or invasion (including Portsmouth Harbor and Causby) and to its contrasting those cases with a solitary regulatory takings case. NELF concluded that despite some wording that might suggest otherwise, the Court’s contrast between one Penn Central case which involved “no physical invasion” and four cases involving physical invasions not unlike that it found in the facts of Kaiser Aetna demonstrates that Kaiser Aetna was decided as a physical takings case, not as a regulatory one.
On June 23, 2021, the Court ruled 6 to 3 that the California labor regulation effected per se, physical takings of an easement in gross. The Court stressed the continuity of its decision with its past treatment of physical takings versus regulatory takings and of temporary or intermittent takings versus permanent takings. It took the same view as NELF and discussed Plymouth Harbor, Causby, and Kaiser Aetna as per se, physical takings cases.