Mike Chernoff, Blog Chair, University of Cincinnati Law Review
The Fifth Amendment protects private property owners from their property being taken for public use, unless they are compensated sufficiently. California allows labor organizers to access agricultural employers’ properties to discuss labor issues, so long as certain conditions are met. This regulation was challenged by two agricultural employers that claimed it amounted to a taking. The Ninth Circuit upheld the dismissal of the claim, but the dissent claimed the majority’s decision created a circuit split. As this article will explain, the Ninth Circuit was correct to deny the Plaintiffs’ claim; in doing so, the court did not create a circuit split but instead followed established precedent.
II. Fifth Amendment Takings
The Fifth Amendment prevents private property from being taken for public use, unless there is “just compensation.” The Supreme Court has recognized various categories of regulatory takings which apply to “regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain.”
These regulatory takings include per se takings which include situations “where government requires an owner to suffer a permanent physical invasion of her property—however minor” and regulations that deprive an owner of “all economically beneficial us[e] of her property.” A state law is determined to violate the Fifth Amendment if the regulatory restriction on private property “[forces] some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” The Supreme Court provided an example of a permanent physical invasion in Loretto v. Teleprompter Manhattan CATV Corp., where a state law required landlords to allow cable television companies to install cable facilities on their property. However, the Supreme Court also stated that “not every destruction or injury to property by governmental action has been held to be a ‘taking’ in the constitutional sense” in PruneYard Shopping Center v. Robins. In PruneYard, the Supreme Court ruled that allowing the public to exercise the rights of free expression and petition on shopping center property was not an infringement of property rights under the Fifth Amendment.
III. Cedar Point Nursery v. Shiroma
In 1975, California enacted the Agricultural Labor Relations Act which established the creation of the Agricultural Labor Relations Board (“the Board”) to “guarantee justice for all agricultural workers and stability in labor relations.” The Board promulgated a regulation early in its existence that allows union organizers access to employees on their employers’ property in certain circumstances. This regulation allows labor organizers to access an agricultural employer’s property for four days out of a 30 day period and limits how many hours the organizers can spend at the property. The 30 day period begins after a labor organization has filed a notice.
In 2015, Cedar Point, an Oregon corporation with a California nursery, and Fowler, a California shipper of grapes and citrus, each had separate incidents of organizers of the United Farm Workers Union seeking access to their employees. In February 2016, Cedar Point and Fowler (“Plaintiffs”) filed a complaint for declaratory and injunctive relief against the Board, claiming the Board’s access regulation amount to a taking in violation of the Fifth Amendment and an unreasonable seizure in violation of the Fourth Amendment. The District Court granted the Board’s motion to dismiss and the Growers sought an appeal to the Ninth Circuit Court of Appeals.
On appeal, the Plaintiffs based their Fifth Amendment argument on the theory that the Board’s access regulation constituted a permanent physical invasion of their property. The Plaintiffs argued that intermittent physical invasions can be permanent if there is no “contemplated end-date” to the intrusions. The Ninth Circuit disregarded this argument, finding that the regulation did not create a permanent physical occupation because the Plaintiffs’ property could not be continuously traveled by the public at any time. The Ninth Circuit further stated that the Board’s regulation did not constitute a taking because the only property right affected was the right to exclude. The Ninth Circuit affirmed the dismissal by the District Court.
The Plaintiffs petitioned for rehearing en banc, which the Ninth Circuit denied. However, Judge Ikuta suggested in her dissent that the majority’s decision had created a circuit split. Judge Ikuta believed that the Federal Circuit’s decision in Hendler v. United States provided an example which would make the labor organizers’ access a taking under the Fifth Amendment. In Hendler, various government vehicles and equipment would enter the Plaintiff’s land without permission to install and service groundwater wells. The Federal Circuit held this amounted to a taking despite only certain government vehicles entering the property. Judge Ikola claimed an easement that allows entry onto private property is a taking and that the Ninth Circuit is the only Circuit that refuses this as a taking.
Judge Paez’s concurrence with the majority refuted Judge Ikola’s claims of a circuit split. According to Judge Paez, an easement does not create a permanent physical invasion in every situation. The concurrence focused on the fact that the Board had not established a permanent physical structure on the Plaintiffs’ property. Also, the organizers were only allowed on the property in specific situations under the regulation. Due to these differences, Judge Paez argued that the majority held correctly and did not create a circuit split.
This case brought to light the question of how much access is required to constitute a taking. The access regulation from the Board would have only allowed organizers to access the Plaintiffs’ properties a maximum of 360 hours per year with 120 of those hours only allowed during the workday. These short timeframes also came with the requirement that the employers had received notice of the organizers intent to access the property. These restrictions on the amount of time an organizer may access the property and the filing requirements prevent the access from becoming “permanent” which is needed for a taking. After the allotted amount of time has expired for the organizers’ access, the employer can exclude the organizers from the property. Similarly, the filing is only valid for 30 days. Once this time period has expired, the organizers do not have access to the property without another filing. Therefore, the Plaintiffs’ claim that the organizers’ access is a “permanent physical invasion” fails because the access is not “permanent.”
The dissent’s claim of a circuit split also does not stand against the concurrence’s argument. Disregarding the fact that the organizers’ access time is limited, there is no element of the access that is “permanent” as seen in prior cases. The organizers do not install equipment or invade any portion of the property, other than to discuss labor issues at specific times. The levels of access allowed by this regulation do not amount to the decisions that the dissent relies on when claiming the circuit split. The majority correctly held that this level of access did not satisfy the standard of a “permanent physical invasion” that is required for the claimed type of Fifth Amendment taking.
The Ninth Circuit considered what is the minimum amount of access to qualify as a taking under the Fifth Amendment. The Board’s access regulation greatly limits when labor organizers may access agricultural property and grants no permanent access for these organizers. Despite the dissent’s claim in Cedar Point Nursery v. Shiroma that this created a circuit split, the majority was correct that this case is distinguishable from the Hendler due to the lack of permanent access granted by the regulation.
 U.S. Const. amend. V.
 Cedar Point Nursery v. Shiroma (Cedar Point I), 923 F.3d 524, 530-531 (9th Cir. 2019), reh’g denied, 956 F.3d 524 (9th Cir. 2020) (citing Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 (2005)).
 Cedar Point I, 923 F.3d at 531 (citing Lingle, 544 U.S. at 538).
 PruneYard Shopping Center v. Robins, 447 U.S. 74, 83 (1980). (quoting Armstrong v. United States, 364 U.S. 40, 48 (1960).
 Cedar Point I, 923 F.3d at 531.
 Id. at 532; PruneYard, 447 U.S. at 82.
 PruneYard 447 U.S. at 82-83.
 Cedar Point I 923 F.3d at 526 (quoting Cal Lab. Code § 1140 note (West 2011) (Historical and Statutory Notes)).
 Cedar Point I, 923 F.3d at 527.
 Id. at 528.
 Id. at 528-529.
 Id. at 529.
 Id. at 529-530.
 Id. at 531.
 Cedar Point I, 923 F.3d at 531.
 Id. at 532.
 Id. at 534-536.
 Cedar Point Nursery v. Shiroma (Cedar Point II), 956 F.3d 1162, 1162 (9th Cir. 2020).
 Id. at 1165 (Ikuta, J., dissenting).
 Id. at 1170-71; Hendler v. United States, 952 F.2d 1364 (Fed. Cir. 1991).
 Hendler, 952 F.2d at 1377.
 Id. at 1377-78.
 Cedar Point II, 956 F.3d at 1171.
 Id. at 1162-63.
 Id. at 1164-65.
 Id. at 1165.
 Id. at 1165.
 Cedar Point I, 923 F.3d at 536.
 Id. at 528.