In a recent case decided on June 23, 2021, the Supreme Court of the United States held that a government regulation in California which allows union organizers to access private property for a specified amount of time per month and year constitutes what is known as a per se physical taking and requires the payment of just compensation.

The California regulation in question, Sec. 20900, Solicitation by Non-Employee Organizers, is one that allows union organizers on the private property of an agricultural employer. It allows union organizers to enter the property and communicate with the employees for up to three hours per day, 120 days per year. A per se taking is one where the property is physically occupied by the government, or anyone authorized by the government. There are many facets of this case that highlight different types of takings by a government, but also highlight the fact that in many cases, unfortunate to say, it is very difficult to stop the government from taking your property.

Two California agricultural property owners filed a lawsuit against the union organizers who organize for the United Farm Workers. Cedar Point Nursery and Fowler Packing Company grow strawberries and table grapes and citrus respectively. They filed their complaints after union organizers entered the Cedar Point property without notice, gathered the workers by using a bullhorn and disrupting the activity of the workers, some of whom joined the organizers to protest or even left the property, and attempted to enter Fowler Packing property without notice or permission. The property owners sought to “enjoin enforcement of the access regulation on the grounds that it appropriated without compensation an easement…[which]…constituted an unconstitutional per se physical taking under the Fifth and Fourteenth Amendments.”1 The District Court denied the owners’ motion for preliminary injunction, maintaining that the access was not permanent and continuous. The Court of Appeals for the Ninth Circuit denied rehearing en banc; though the panel was divided, and there was dissent, it still affirmed the District Court’s finding. The U.S. Supreme Court granted certiorari.

The U.S. Supreme Court’s opinion focused its reasoning on the fact that the regulation allows the union organizers to physically invade the owners’ property, in other words, to “took access,” which constitutes a per se physical taking. The dissenting opinion rebuts this view by stating that this regulation does not permanently take away the right to exclude others, which is one of sticks from the “bundle of sticks” symbolizing all the rights an owner has concerning his or her property. Chief Justice Roberts disputes this view by pointing out that the use of an easement does not have to be continuously used in order for it to be permanent. That is, an easement can be used from time to time and is still permanent. Furthermore, it is long-established that temporary easements are still physical takings and require just compensation.

Both the opinion and the dissent explore the possibility of applying a test set forth in Penn Central Transportation Co. v. New York City, 438 U.S. 104, referred to as the Penn Central analysis. If the taking is not a permanent, physical invasion or if it does not deprive all economic use of the property, then the analysis set forth in Penn Central must be utilized in order to determine if a trespass goes ‘too far’ to warrant as a taking, and therefore, warrants just compensation.

The U.S. Supreme Court boiled the deciding factors of this case down to the fact that the California regulation provided that otherwise-excluded individuals were physically allowed on the property, and that even though the amount of time was not great, it was still appropriating an owner’s right to exclude, even for a brief time, and therefore, constituted a per se physical taking. Contrary to what you might read elsewhere, this does not mean that the taking is not allowed; it merely means that the government (or those authorized by the government) must pay you for it. The owners originally sought injunctive and declaratory relief, but did not allege any damages in their District Court and Circuit Court filings. Damages are what happen when the remaining property loses value due to the taking in condemnation cases. Yet, the Court’s opinion says that the owners’ “complaint states a claim for an uncompensated taking in violation of the Fifth and Fourteenth Amendments.”

Union advocates seem to be disheartened by this online, with property rights advocates singing glories. They both should take pause to fully absorb the effect of this ruling: union organizers can access private property to reach workers, even when they do not live on the property, they just have to compensate the owner for it. Yes, unions will now have to pay, but the flip side is that they still are able to, for up to 3 hours per day, 120 days per year. On the downside, this means that private property owners, in this case agricultural growers, cannot stop the union organizers from entering. The Court previously ruled that this was allowed, without compensation to boot, when workers live on the property, in which case, union organizers would not be able to have access to them otherwise and thus conflicts with the workers’ right to organize.

This ruling unfortunately brings up a more disturbing question: if the taking was legitimized, when would takings be illegitimate, if ever? It seems as if the ability of the government to take private property is ever-growing, as long as there is a resolution or ordinance. This case does involve other constitutional rights, so it is not so cut and dried, but it is a fact that private property rights seem to be diminishing which the passing of day, of each ordinance and resolution. It seems firmly cemented that the only issue that can be challenged is the amount of compensation.

Chief Justice Roberts delivered the opinion, with Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, JJ., joining. Breyer, J. dissented, joined by Sotomayor and Kagan, JJ.


1United States, Supreme Court. Cedar Point Nursery v. Hassid, 594 U.S. ____ (2021). 23 Jun 2021. Supreme Court. Accessed 22 Jul 2021.

2California Code of Regulations. Legal Information Institute, Cornell Law School. Accessed 22 Jul 2021.