Facts of the Case

Provided by Oyez

In 1975, California enacted the Agricultural Labor Relations Act (“ALRA”), which, among other things, created the Agricultural Labor Relations Board (“the Board”). Shortly after Act went into effect and established the Board, the Board promulgated a regulation allowing union organizers access to agricultural employees at employer worksites under specific circumstances.


Cedar Point Nursery, an Oregon corporation, operates a nursery in Dorris, California, that raises strawberry plants for producers. It employs approximately 100 full-time workers and more than 400 seasonal workers at that location. On October 29, 2015, organizers from the United Farm Workers union ("the UFW") entered the nursery, without providing prior written notice of intent to take access as required by the regulation. The UFW allegedly disrupted the workers, and some workers left their work stations to join the protest, while a majority of workers did not.


Sometime later, the UFW served Cedar Point with written notice of intent to take access. Cedar Point filed a charge against the UFW with the Board, alleging that the UFW had violated the access regulation by failing to provide the required written notice before taking access. The UFW likewise filed a countercharge, alleging that Cedar Point had committed an unfair labor practice.


Cedar Point then sued the Board in federal district court alleging that the access regulation, as applied to them, amounted to a taking without compensation, in violation of the Fifth Amendment, and an illegal seizure, in violation of the Fourth Amendment. The district court granted the Board’s motion to dismiss for failure to state a claim, and Cedar Point appealed. Reviewing the district court’s order granting the motion to dismiss de novo, the U.S. Court of Appeals for the Ninth Circuit concluded that the access regulation does not violate either provision, and it affirmed the lower court.


  1. Does the California regulation granting labor organizations a “right to take access” to an agricultural employer’s property to solicit support for unionization constitute a per se physical taking under the Fifth Amendment?


  1. The California regulation granting labor organizations a “right to take access” to an agricultural employer’s property to solicit support for unionization constitutes a per se physical taking. Chief Justice John Roberts authored the 6-3 majority opinion of the Court.

    The Takings Clause of the Fifth Amendment of the U.S. Constitution, which applies to the states via the Fourteenth Amendment, prohibits the government from taking private property for public use “without just compensation.” There are two types of takings: physical appropriations of land and imposition of regulations that restrict the landowner’s ability to use the land. Physical takings must be compensated. Use restrictions are evaluated using a flexible test developed in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), which balances factors such as the “economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the government action.”

    In this case, the California regulation granting labor organizations a “right to take access” to an agricultural employer’s property is a physical taking. The regulation does not restrict the growers’ use of their own property, but instead appropriates the owners’ right to exclude third parties from their land, “one of the most treasured rights” of property ownership. By granting access to third-party union organizers, even for a limited time, the regulation confers a right to physically invade the growers’ property and thus constitutes a physical taking.

    Justice Brett Kavanaugh authored a concurring opinion describing another way the Court could have arrived at the same conclusion, using a different precedent.

    Justice Stephen Breyer authored a dissenting opinion, in which Justices Sonia Sotomayor and Elena Kagan joined. Justice Breyer argued that the regulation does not physically appropriate growers’ property; rather, it temporarily regulates their right to exclude others and as such should be subject to the “flexible” Penn Central rule.