Master The Supreme Court held that California's union-access regulation effects a per se physical taking by appropriating a right to invade private property without compensation. with this comprehensive case brief.
Cedar Point Nursery v. Hassid is a landmark modern Takings Clause decision clarifying when government-authorized physical invasions of private land are categorically compensable. The case addressed a California regulation granting union organizers limited, recurring access to agricultural employers' property to speak with workers. The question was whether that state-created access right—an entitlement to physically enter private land for certain hours and days—amounted to a per se physical taking, even though the access was temporary and intermittent.
The Supreme Court answered yes. Re-emphasizing the centrality of the owner's right to exclude, the Court held that government appropriation of an access easement—whether continuous or time-limited—triggers per se takings treatment, not the ad hoc Penn Central balancing test. Cedar Point thus reorients takings analysis for access-right regimes, while cabining traditional inspection and emergency-entry authorities as background limits or consent-based conditions.
141 S. Ct. 2063 (2021) (Supreme Court of the United States)
California's Agricultural Labor Relations Act (ALRA) authorizes union organizers to enter agricultural employers' property to communicate with workers. Under Cal. Code Regs., tit. 8, § 20900(e), certified union organizers may access an employer's premises for up to three hours per day (one hour before work, one during lunch, and one after work), for up to four 30-day periods per year (a total of 120 days), subject to advance notice and limits on disruptive conduct. Cedar Point Nursery, a strawberry grower in northern California, and Fowler Packing Company, a Central Valley producer and shipper, challenged the regulation after United Farm Workers organizers entered Cedar Point's property at approximately 5:00 a.m., using bullhorns and encouraging employees to join a protest; Fowler alleged imminent access activity at its facility. Neither employer had invited the organizers. The employers sued members of the Agricultural Labor Relations Board (ALRB) in federal court, alleging the access regulation was a taking of their property without just compensation in violation of the Fifth and Fourteenth Amendments. The district court dismissed for failure to state a claim; the Ninth Circuit affirmed, reasoning the regulation was not a per se physical occupation under Loretto because it was not permanent, and that any claim would sound, if at all, in regulatory takings under Penn Central. The Supreme Court granted certiorari.
Does a government regulation that grants union organizers a limited right to physically enter private agricultural property constitute a per se physical taking under the Fifth Amendment, requiring just compensation?
When the government appropriates a right to physically invade private property—by authorizing third parties to enter and occupy land, even on an intermittent or time-limited basis—it effects a per se physical taking requiring just compensation. This per se rule applies regardless of the invasion's duration, unless the access falls within background limitations on property rights (such as health and safety inspections, emergency entries, or long-recognized privileges), is a condition voluntarily accepted in exchange for a government benefit and analyzed under Nollan/Dolan, or is otherwise consented to by the owner.
Yes. The California access regulation appropriates a right to physically invade private property and therefore effects a per se physical taking under the Fifth Amendment. The Ninth Circuit's judgment was reversed.
Majority (Roberts, C.J.): The Court emphasized that the right to exclude is a fundamental element of property. A regulation that appropriates a formal entitlement for third parties to physically enter and occupy private land—here, union organizers—takes a discrete stick from the owner's bundle of rights. That appropriation is akin to granting an easement-in-gross and is per se compensable under precedents such as Loretto v. Teleprompter Manhattan CATV Corp. and Kaiser Aetna v. United States. The per se character does not turn on permanence: while Loretto involved a permanent occupation, temporary or intermittent invasions can likewise be takings, as recognized in cases like Arkansas Game & Fish Commission. The California rule authorizes recurring invasions up to three hours per day, 120 days per year—an ongoing appropriation of access. The Court rejected the State's contention that the regulation merely regulated the use of property. Unlike use restrictions assessed under Penn Central, the access rule grants a right of physical invasion to third parties regardless of the owner's consent. The Court distinguished PruneYard Shopping Center v. Robins, where the property was already open to the public and the owner retained broad control; by contrast, agricultural worksites are not public forums, and compelled entry by organizers meaningfully impairs the right to exclude. The Court also rejected arguments that its holding threatens routine government inspections or emergency entries. Those entries either reflect background limitations on property rights (e.g., abating nuisances, exigent circumstances), are undertaken with owner consent or as conditions on benefits or licenses (to be analyzed under Nollan/Dolan exactions doctrine), or otherwise do not confer a freestanding entitlement to third-party access. Because California had appropriated a right of access without providing just compensation, the regulation constituted a per se physical taking. Concurrence (Kavanaugh, J.): Justice Kavanaugh agreed that the regulation effected a per se taking and noted that the result accords with labor-law principles (e.g., NLRB v. Babcock & Wilcox Co.) limiting nonemployee union access to employer property absent unique circumstances—though agricultural workers are outside the NLRA's scope. Dissent (Breyer, J., joined by Sotomayor and Kagan, JJ.): The dissent viewed the regulation as a time-limited use restriction that should be analyzed under Penn Central, not as a per se taking. Emphasizing its temporary nature and the absence of a continuous occupation or transfer of estate-like interests, the dissent warned that the majority's rule risks casting doubt on myriad regulatory entry regimes. The majority responded that background limits and consent-based conditions mitigate those concerns.
Cedar Point re-centers the right to exclude in takings analysis and establishes that government-created access rights are per se physical takings, even when intermittent. For law students, the case sharpens the boundary between per se physical takings and regulatory takings: when the government appropriates a right of entry, Penn Central balancing drops out. The decision also clarifies how to treat inspection regimes and exaction conditions, highlights the continuing vitality of Loretto and Kaiser Aetna, and narrows PruneYard to its public-access context. Practically, the case affects labor access rules, easement-by-regulation programs, and similar statutes that compel private land access without compensation.
Because the regulation appropriated a discrete right to physically invade private property—the quintessential feature of a physical taking. Under Loretto and Kaiser Aetna, when the government authorizes third parties to enter and occupy land without the owner's consent, it seizes a stick from the bundle of rights (the right to exclude). That categorical appropriation triggers per se treatment regardless of the invasion's duration. Penn Central's ad hoc balancing is reserved for use restrictions that do not authorize physical invasions.
PruneYard upheld state-law protection for expressive activity in a shopping center already open to the public, where the owner retained authority to impose time, place, and manner limits and the intrusion was minimal. Cedar Point distinguished PruneYard on two grounds: agricultural worksites are not open to the public, and California's rule conferred a stand-alone access entitlement on third parties. Thus, compelled access to nonpublic land that meaningfully impairs the right to exclude is a per se taking, whereas regulating speech in places open to the public is different.
No, the majority explained that such entries typically fall within background limitations on property rights (e.g., exigent circumstances, abatement of nuisances), occur with consent, or are conditions attached to benefits or licenses that are analyzed under Nollan/Dolan. Those regimes do not confer a freestanding third-party access easement like the one at issue. Therefore, they are generally not per se takings.
A per se taking requires just compensation. Because California provided no compensation for the appropriated access right, the regulation was unconstitutional as applied to petitioners. A state may either discontinue the access regime or maintain it and pay compensation. Property owners may seek declaratory and injunctive relief when the government conditions property rights on uncompensated takings.
No. Cedar Point applies Loretto's per se rule for physical invasions and preserves Penn Central for regulatory use restrictions that do not appropriate access rights. The decision clarifies, rather than displaces, the doctrinal separation: physical appropriations (including time-limited easements) are per se takings; noninvasive restrictions on use are evaluated under Penn Central unless another categorical rule applies.
Agricultural workers are excluded from the National Labor Relations Act, so California enacted the ALRA and the access regulation to facilitate union communication. Justice Kavanaugh's concurrence noted that the result aligns with federal labor-law principles limiting nonemployee organizer access (Babcock), but the constitutional holding turned on property rights: the State cannot appropriate an access easement without compensation, regardless of labor-law objectives.
Cedar Point Nursery v. Hassid consolidates a robust, property-centered understanding of the Takings Clause. By treating government-created access rights as per se physical takings, the Court reaffirmed the primacy of the right to exclude and clarified that time limits do not convert a physical appropriation into a mere regulatory restriction. The decision thus provides a bright-line rule for when compelled entries onto private land trigger compensation.
For students and practitioners, Cedar Point reshapes the analysis of statutes and regulations that authorize third-party entry onto private property. It preserves governmental capacity to conduct inspections, respond to emergencies, and impose consent-based conditions, while requiring compensation when the State confers easement-like access rights. The case is now a cornerstone for understanding the modern landscape of physical versus regulatory takings.
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