U.S. Supreme Court

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The U.S. Supreme Court on Friday agreed to decide whether allowing union organizers to access private property for part of the year amounts to a physical taking of property that violates the Fifth Amendment.

The Pacific Legal Foundation is representing two produce growers, the Cedar Point Nursery and the Fowler Packing Co., that are challenging a California regulation permitting union access to their property, according to press releases here and here. The regulation allows union officials to spend up to three hours per day, 120 days per year on employer property to recruit union members.

According to the cert petition, the issue in the case is whether the government may avoid the Fifth Amendment’s requirement to pay just compensation merely by placing time restrictions on an easement. The case is Cedar Point Nursery v. Hassid.

The 9th U.S. Circuit Court of Appeals at San Francisco had upheld the regulation, holding that it did not constitute a permanent property invasion requiring compensation. Under the 9th Circuit rule, governments could avoid a duty to pay just compensation by limiting easements to particularly high-value times, according to the growers’ cert petition.

“After all, the right to enter [the growers’] properties during nighttime hours when no workers are present would be useless to the union. The same is true for beach access easements, which governments would be happy to limit to daylight hours if they could evade a categorical duty to compensate by doing so,” the Supreme Court said.

SCOTUSblog, Law360 and the San Joaquin Valley Sun are among the publications covering the cert grant.