The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier today, the US Court of Appeals for the Ninth Circuit refused to grant en banc reconsideration of a three judge panel decision in Cedar Point Nursery v. Shiroma, an important takings case where the panel had ruled there was no taking of private property requiring "just compensation" under the Fifth Amendment in a situation where the government had mandated that agricultural employers grant union organizers regular access to their property. The panel ruled that there was no taking largely because state regulations did not require owners to give union organizers the right to "unpredictably traverse their property 24 hours a day, 365 days a year." Instead, they are only allowed to access the property at specified times, amounting to "360 hours a year out of a total 8,760 hours (and only 120 of those hours would be during the workday)." Thus, there is no "permanent physical occupation" of property, of the sort required by Supreme Court precedent for this to be considered a "per se" (automatic) taking, as opposed to one subject to the complex Penn Central balancing test, that usually comes out in favor of the government.
Today, a majority of the full Ninth Circuit ruled that the case would not be reconsidered en banc, by a much larger panel. However, eight judges joined a dissenting opinion authored by Judge Sandra Ikuta. Here is a summary of their position:
Once again, the Ninth Circuit endorses the taking of property without just compensation. See Horne v. U.S. Dep't of Agric., 750 F.3d 1128 (9th Cir. 2014), rev'd sub nom. Horne v. Dep't of Agric., 135 S. Ct. 2419 (2015). California property law and Supreme Court precedent make clear that an easement is private property protected by the Takings Clause. See, e.g., L.A. Terminal Land Co. v. Muir, 136 Cal. 36, 48 (1902); Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 831 (1987). In opposition to this precedent, the majority concludes there is no taking because the state's appropriation of an easement is not a "permanent physical occupation." Cedar Point Nursery v. Shiroma, 923 F.3d 524, 531–34 (9th Cir. 2019). This decision not only contradicts Supreme Court precedent but also causes a circuit split. See Hendler v. United States, 952 F.2d 136, 1377–78 (Fed. Cir. 1991). We should have taken this case en banc so that the Supreme Court will not have to correct us again….
To the extent there was any doubt as to whether the appropriation of an easement constitutes a taking, it was dispelled by Nollan [v. California Coastal Commission].There, the Court stated that if California were to require landowners to "make an easement across their beachfront available to the public," there is "no doubt there would . . . be a taking." Nollan, 483 U.S. at 831. According to the Court, "[t]o say that the appropriation of a public easement across a landowner's premises does not constitute the taking of a property interest but rather . . . 'a mere restriction on its use,' is to use words in a manner that deprives them of all their ordinary meaning." Id. (citation omitted).
The Federal Circuit's decision in Hendler v. United States, 952 F.2d 1364 (Fed. Cir. 1991), is in accord with these precedents. There, the Federal Circuit held that the federal government had acquired an uncompensated easement when "Government vehicles and equipment entered upon plaintiffs' land from time to time, without permission, for purposes of installing and servicing . . . various [groundwater] wells." Id. at 1377. Entry onto private property, "even though temporally intermittent," effected a taking because "the concept of permanent physical occupation does not require that in every instance the occupation be exclusive, or continuous and uninterrupted." Id.
The issue here comes down to whether a "permanent physical occupation" occurs only when it is literally continuous, or when the right to occupy continues indefinitely, but does not apply to all hours of the day, all the time. The Supreme Court precedent on this subject—like on a number of other takings issues—is far from a model of clarity, and this is one of the questions on which it is ambiguous. That said, I largely agree with the dissenting Ninth Circuit judges, and with the 1991 Federal Circuit decision they cite above. A permanent right to an easement to enter or occupy an owner's land is a severe infringement on property rights even if applies only to certain hours of the day, and even if the intrusion is not continuous. Moreover, the right to exclude unwanted entrants is a central element of property rights in the Anglo-American legal tradition. So it is hard to argue that a major restriction on it is not a taking of property rights.
It's also worth noting that this case has implications that go far beyond the union organizing context. If the Ninth Circuit majority's position prevails, it could allow the government to impose a wide range of access requirements on owners without paying compensation.
As the dissenting judges point out, this Ninth Circuit ruling has a created a split with the Federal Circuit. This—combined with the intrinsic importance of the issue—makes it more likely that the Supreme Court will take the case, though of course it is far from certain they will do so.
UPDATE: I should add that Judge Ikuta's dissenting opinion seems calculated to attracted the Supreme Court's attention, and at least some of the justices will probably notice. That doesn't necessarily mean they will take the case. But it does make it likely that the Court will at least give serious consideration to doing so.
UPDATE #2: I should have noted that the plaintiffs in this case are represented by the Pacific Legal Foundation, with which my wife, Alison Somin, has accepted a position at which she will begin working next week. Alison is not involved in this case. But I should note the potential conflict of interest, nonetheless.