Wednesday, May 08, 2019

Cedar Point Nursery v. Shiroma (9th Cir. - May 8, 2019)

Judge Paez's majority opinion today is spot on.

In California, a union can potentially get access to seasonal agricultural workers (e.g., to try to unionize them) by giving notice to the employer that they want to go on the field for an hour before work and/or an hour after work to talk with the workers.  The theory behind this rule is that it's often hard to otherwise gain access to these employees, who (necessarily) often work in different fields on different days, etc.

The plaintiffs in this case are employer/landowners who claim that this California regulation is an unconstitutional per se taking.  On the theory that it's authorizes an express trespass on their land.  So, they say, they're entitled to compensation.

I'm somewhat sympathetic to this position, at least as a purely legal matter.  It is, after all, a trespass, and it's definitely their land.  Just as I wouldn't want a stranger coming on my land, I can get why an employer doesn't necessarily want strangers coming on theirs.  The right to exclude being a huge part of the relevant bundle of sticks, as it were.

But here's the thing:

Plaintiffs bring a claim for a per se taking.  That's a big deal.  Only particular types of things are per se takings.  The first is “where government requires an owner to suffer a permanent physical invasion of her property--however minor."  But the regulation at issue definitely isn't a permanent physical invasion of property.  It's limited in time (an hour before and after work) as well as frequency (four times a year).  Clearly that's not a permanent physical invasion.  The other type of per se taking is when a governmental act “completely deprives an owner of ‘all economically beneficial us[e]’ of her property.”  That too is obviously inapplicable here, since the landowner can (and does) still use the property to productively farm notwithstanding the temporary intrusion.

Everything else may potentially be a "regulatory taking" that's subject to mandatory compensation, but it's governed by a different legal test.  It's not per se.  And plaintiffs make it crystal clear that they are only interested in bringing a per se claim, and refuse to amend their complaint to allege anything less.

Okay.  So be it.  Maybe there's a regulatory takings claim.  Though, on that test, the limited nature of the intrusion -- and the public interest in favor of it -- maybe not.  But if that claim -- the one that may perhaps have legal merit -- isn't one that the plaintiffs are interested in bringing, then this case should be resolved exactly as Judge Paez does.  Notwithstanding Judge Leavy's dissent to the contrary.