Cedar Point Nursery v. Hassid

No. 20-107. Argued March 22, 2021. Decided June 23, 2021. Certiorari to the United States Court of Appeals for the Ninth Circuit. Judgment reversed and the case remanded (923 F.3d 524, reversed and remanded). Opinion of the Court by Chief Justice Roberts, joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett; Justice Kavanaugh filed a concurring opinion; Justice Breyer filed a dissenting opinion, in which Justices Sotomayor and Kagan joined.

Editorial note. A regulation of the California Agricultural Labor Relations Board granted union organisers a right to take access to an agricultural employer's property to solicit support for unionisation for up to three hours per day during four thirty-day periods each year. Organisers entered a strawberry nursery without prior notice and, at a second grower, sought access which was refused. The growers sued the Board's members, contending that the access regulation appropriated an easement without compensation.

Editorial note. The District Court dismissed the complaint and the Ninth Circuit affirmed, holding the regulation was not a per se physical taking because it did not authorise a permanent and continuous occupation. The Supreme Court reversed and remanded.

Editorial note. The issue was whether a regulation compelling a landowner to admit third parties for a limited, recurring period is a per se physical taking or merely a use restriction to be assessed under Penn Central. The Court held that it is a per se physical taking: the regulation appropriates for the enjoyment of third parties the owner's right to exclude, and the government must pay for what it takes. The rule that follows is that the distinction is between appropriation of a property right and restriction on the owner's use, not between permanent and temporary invasions; the duration of an appropriated access right affects the amount of compensation, not the existence of the taking.

Editorial note. The Chief Justice reasoned that the right to exclude is a fundamental element of the property right and that its appropriation is the taking of a compensable easement, whatever the label state law attaches. Loretto's reference to permanent occupation described the facts before that Court rather than a temporal condition, and the airspace easement in Causby was intermittent yet compensable. The Court identified three limits on its holding: isolated physical invasions not undertaken pursuant to a granted right of access are trespasses governed by ordinary tort law; government health and safety inspections and similar traditional access are consistent with longstanding background limitations; and access may be required as a genuine condition on the grant of a benefit, subject to Nollan and Dolan. Justice Breyer's dissent argued the regulation restricted use rather than appropriating an interest and should have been analysed under Penn Central.

Editorial note. Cedar Point restates the modern architecture of takings doctrine around the appropriation-regulation distinction and places the right to exclude at the centre of the treatise's account of ownership. It also clarifies the relationship between compelled access, easements, and the exactions cases, and supplies the framework by which regulatory access requirements are now classified.

Editorial note. Recent authority; no adverse treatment. Applied by lower courts to compelled-access and forced-entry regulations, and consistent with Sheetz v. County of El Dorado, 601 U.S. 267 (2024), on the reach of the exactions framework.

Editorial note. Read with U.S. Const. amend. V (Takings Clause) and the treatise chapters on easements and on physical takings.