Summary
The Ninth Circuit denied panel rehearing and rehearing en banc in a challenge to California’s agricultural labor access regulation, which permits union organizers to enter agricultural employers’ property under specified circumstances. The concurrence defended the panel’s conclusion that the regulation did not effect a permanent physical invasion or taking, while the dissent argued that the regulation appropriated easements protected by the Takings Clause.
Topics
Practice areas
Questions Presented
- Whether the Ninth Circuit should grant panel rehearing or rehearing en banc after affirming dismissal of the plaintiffs' Takings Clause challenge.
- Whether California's agricultural-labor Access Regulation plausibly effects a per se taking by appropriating easements in gross for union organizers to enter private agricultural property.
Holdings
- Rehearing en banc was denied because the petition failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration.
- The prior panel held that the plaintiffs had not stated a cognizable per se Takings Clause claim because the Access Regulation did not grant union organizers a permanent and continuous right to pass to and fro across the property. The rehearing order left that panel holding in place.
Key quotations
“The petition for rehearing en banc is DENIED.” (at 4)
“The court’s majority opinion correctly held that the Growers have not suffered a “permanent and continuous” loss of their right to exclude the public from their property.” (at 9)
“In sum, the Supreme Court has repeatedly, and consistently, recognized that the appropriation of an easement that allows for entry onto private property constitutes a taking of property.” (at 20-22)
“By failing to give fair consideration to the plaintiffs’ actual claims, the majority creates a circuit split, disregards binding Supreme Court precedent, and deprives property owners of their constitutional rights.” (at 29-30)
Factual background
Cedar Point Nursery and Fowler Packing Company employ agricultural workers on private property. California's Agricultural Labor Relations Board adopted an Access Regulation permitting union organizers to enter agricultural employers' premises for specified periods to meet with employees and solicit support. Cedar Point alleged that organizers entered its property and disrupted work, while Fowler blocked an attempted entry; both companies alleged that the regulation created uncompensated easements and sought declaratory and injunctive relief.
Procedural history
The Central District of California dismissed the complaint for failure to state a plausible Takings Clause claim. The Ninth Circuit panel affirmed in Cedar Point Nursery v. Shiroma, 923 F.3d 524 (9th Cir. 2019), concluding that California's agricultural-labor access regulation did not create a permanent physical invasion amounting to a per se taking. On April 29, 2020, the Ninth Circuit denied panel rehearing and, after a vote, denied rehearing en banc.