Regulation Granting Unions Access to Farms Was an Unconstitutional Taking

On June 23, 2021, the United States Supreme Court delivered a significant victory to growers and landowners in Cedar Point Nursery v. Hassid. The Court ruled that a California regulation granting unions access to an agricultural employer’s property for three hours per day, 120 days per year, to solicit union support was an unconstitutional taking of private property.

At issue was whether the regulation physically appropriates property from the growers, which is automatically unconstitutional, or merely restricts the growers’ use of their land, which requires further analysis. The Court found that the regulation gives unions the right to physically invade the growers’ land, rather than merely restricting the growers’ use of their property and deprives growers of their right to physically exclude others from entering their land, an essential element of property rights. This was enough for the Court to hold that the regulation was a physical taking and did not require further analysis.

The intermittent and temporary nature of the access was irrelevant and did not change the fact that the regulation constituted a physical taking. The Court noted that, without the access regulation growers would otherwise have the right to exclude unions from their land, and there was no dispute that the regulation took that right away from them.

The Court contrasted the growers’ land, which was closed to the public, from property normally open to the public or where farm workers live on the premises and unions have no other means of communicating with them. Union access in such situations may not be so readily held as unconstitutional.

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