Cedar Point Nursery v. Hassid: Yes… When the Government Forces a Landowner to Allow the Public to Enter the Property it is a Taking!

A case a lot of land use and regulatory takings lawyers have been eagerly awaiting is Cedar Point Nursery v. Hassid, 594 U.S. ___(2021), decided by the U.S. Supreme Court on June 23, 2021.  Normally, I would start by analyzing the majority opinion, but in this instance it’s worth while to look at the way the dissenters framed the issue.

As Justices Breyer, Sotomayor, and Kagan noted, a California regulation provides that representatives of a labor organization may enter an agricultural employer’s property for purposes of union organizing. They may do so during four months of the year, one hour before the start of work, one hour during an employee lunch break, and one hour after work.

The question before the Court is how to charac­terize this regulation for purposes of the Constitution’s Tak­ings Clause.

According to the dissent, does the regulation physically appropriate the employ­ers’ property? If so, there is no need to look further; the Government must pay the employers “just compensation.” U. S. Const., 5th Amend.; see Arkansas Game and Fish Comm’n v. United States, 568 U. S. 23, 31 (2012) (“‘[W]hen the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner’”). Or does the regu­lation simply regulate the employers’ property rights?  If so, then the government need pay the employers “just compensation” only if the reg­ulation “goes too far.” Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922) (Holmes, J., for the Court); see also Penn Central Transp. Co. v. New York City, 438 U. S. 104, 124 (1978) (determining whether a regulation is a taking by examining the regulation’s “economic impact,” the extent of interference with “investment-backed expectations,” and the “character of the governmental action”).

The dissenters’ framing of the issues was their undoing.  At lease since the mid-2000s, the Court has held that when the government causes a permanent physical occupation of private property. Lingle v. Chevron U. S. A. Inc., 544 U. S. 528, 538 (2005).  See also Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 434 (1982). This has been Black Letter Law for most practitioners, as definite as two plus two equals four.

The Court’s majority held that the provision’s “access to organiz­ers” requirement amounted to a physical appropriation of property. The access regulation granted labor organizations a right to invade the growers’ property. It therefore constituted a per se physical taking.

The Ninth Circuit saw the case differently because it felt that the regulation did not amount to a per se taking because it did not allow for 24 hour a day year-round access.  The dissenters likewise concluded that the regulation didn’t amount to a taking because the access it allowed fell short of 365 days a year. This raises an interesting question of how the dissenters would have viewed the case if the regulation allowed for access for 364 days and 23 hours of access.

There are two ways the dissenters’ argument unraveled.  The Court has held in a litany of cases that the right to exclude the public from property is one of the most important sticks in the proverbial bundle of sticks comprising a landowner’s interest in property.  And the California regulation established a permanent requirement that landowners allow union organizers to occupy private property during certain months of the year.

A lot of people thought that Cedar Point might add some clarity to the Penn Central multifactor regulatory taking test, but the majority opinion, authored by Justice Roberts, kept the case simple.


Jay Small practices in the areas of eminent domain, condemnation, property rights, inverse condemnation, and land use law.  If you have any questions about how government regulations can affect your property, contact him at (407) 425-9044, by email at [email protected], or follow him on LinkedIn.

This blog and these materials are not intended to provide legal advice. They do not represent the legal opinions of the firm, nor should they be regarded as the legal positions of any client of the law firm of Mateer Harbert, P.A. They are provided for general informational purposes only. These materials should not be used as a substitute for the advice of qualified legal counsel.

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