On June 23, 2021, the United States Supreme Court issued an important decision for property rights. In Cedar Point Nursery v. Hassid, the Court held that a California regulation allowing union organizers to access agricultural growers’ private property up to three hours per day, 120 days a year, is a per se physical taking requiring just compensation under the Fifth and Fourteenth Amendments. Writing for a 6-3 majority, Chief Justice John Roberts stated “[t]he Founders recognized that the protection of private property is indispensable to the promotion of individual freedom.” Thus, when government authorizes the physical invasion of private property, the government has taken private property and must pay for what it takes.
In Cedar Point Nursery, a group of property owners challenged California’s access regulation as the uncompensated taking of an easement, and a physical appropriation of their property. The government defended its regulation by arguing that the regulation was not a per se physical taking and was instead a regulatory taking that should be analyzed under the multi-factor balancing test established in Penn Central v. New York. The Ninth Circuit Court of Appeals agreed with California, holding that the regulation was not a taking because it did not give union organizers the right to “unpredictably traverse their property 24 hours a day, 365 days a year.”
The Supreme Court reversed, stating that “a physical appropriation is a taking whether it is permanent or temporary.” The Court recognized its longstanding distinction between regulations that “appropriate” private property versus regulate the use of property. And the Court held that California’s regulation appropriates rather than regulates by granting union organizers “the right to invade the growers’ property and therefore constitutes a per se physical taking.”
The Court emphasized the deep roots of its categorical rule. Physical takings “are as old as the Republic” and “impose[ ] a clear and categorical obligation to provide the owner with just compensation.” And in this case, the Court recognized that the property right appropriated—the right to exclude—is “universally held to be a fundamental element of the property right.” Given the importance of that right, the Court was emphatic that California’s regulations here amounted to a per se taking.
By contrast, the dissent argued the regulation was just that, a regulation, not a physical appropriation of property. Writing for three dissenting justices, Justice Stephen Breyer distinguished the majority’s analysis by relying on a distinction between “permanent” physical invasions of property and “temporary” physical invasions. The dissent argued the latter are regulations, not per se takings, thus a “regulatory-balancing” approach, not an “absolute per se” rule, was warranted. And the dissent criticized the majority’s approach, warning it will produce more uncertainty for the lower courts than applying the Penn Central balancing test.
The majority rejected the dissent’s critique. As a matter of text, history, precedent, and common sense, the Court held that a physical invasion is a per se appropriation of property, not a use regulation. And it rejected the notion that a temporary physical invasion is distinct from a permanent physical invasion. “There is no reason the law should analyze an abrogation of the right to exclude in one manner if it extends for 365 days, but in an entirely different manner if it lasts for 364,” wrote the Chief Justice. The majority refused to accept the dissent’s position that “the right to exclude is an empty formality, subject to modification at the government’s pleasure.” In the Chief’s words, the right to exclude “cannot be balanced away.”
The majority concluded by clarifying its decision. First, trespasses are distinct from takings, and “are properly assessed as individual torts rather than appropriations of a property right.” Second, some physical invasions may not be takings if they are “consistent with longstanding background restrictions on property rights,” such as abating nuisances. Third, government can require property owners to cede a right of access in exchange for certain benefits. But the physical invasion authorized by California law fell under none of these recognized exceptions.
Ultimately, the majority’s holding was simple; physical appropriations of land are governed by a “per se rule: The government must pay for what it takes.” Although the dissent worries that the majority’s categorical rule will prove unworkable in the modern world, the majority responded that “the complexities of modern society . . . only reinforce the importance of safeguarding the basic property rights that help preserve individual liberty.” In their Cedar Point decision, the Court reaffirmed what John Adams recognized two centuries ago: “Property must be secured, or liberty cannot exist.”
For more information and analysis of the decision in Cedar Point Nursery v. Hassid check out the Courthouse Steps Decision Teleforum here.