The NCSL Blog


By Lisa Soronen

The U.S. Supreme Court has required governments to pay “just compensation” to property owners where the government “requires an owner to suffer a permanent physical invasion of her property—however minor.” 

Supreme CourtBut what if the invasion is temporary? In Cedar Point Nursery v. Hassid, the Supreme Court will decide whether a Fifth Amendment Takings has occurred.

The U.S. Constitution’s Fifth Amendment allows the government to “take” private property as long as it pays “just compensation.” In this case a number of agriculture employers argue California statutes “take” their property by allowing union organizers access to agricultural employees on the grower’s property. The access period may be during four 30-day periods each year for up to three hours each day. The union organizers must provide notice to the employers.

The 9th Circuit ruled against the employers. According to the 9th Circuit, “[t]he Growers base their Fifth Amendment argument entirely on the theory that the access regulation constitutes a permanent physical invasion of their property and therefore is a per se taking.”

The 9th Circuit found no permanent physical invasion in this case. The lower court compared this case to Nollan v. California Coastal Commission (1987), where the California Coastal Commission offered to give a homeowner a permit to rebuild a house in exchange for an easement allowing the public to cross the property to access the beach. In Nollan, the Supreme Court required the Coastal Commission to provide just compensation for the easement. Here, according to the 9th Circuit, “[t]he regulation significantly limits organizers’ access to the Growers’ property. Unlike in Nollan, it does not allow random members of the public to unpredictably traverse their property 24 hours a day, 365 days a year.”

A dissenting judge opined that the regulation causes a physical taking because it prevents growers from excluding people from their property regardless of the duration of the invasion.

States and local governments frequently go on private property (or allow others to do so) in police work, health inspections, code enforcement, etc. John D. Echeverria, a professor at Law Vermont Law School, explains there is a “long and respected tradition, supported by numerous federal and state court decisions, of consistently rejecting taking claims based on certain types of government-caused physical intrusions.” But, according to Professor Echeverria, these examples involve a taking “that the courts should treat as a compensable taking if the Supreme Court were truly committed to a per se approach.”

A number of states asked the Supreme Court to hear this case and overturn the 9th Circuit decision noting they “want to ensure that the federal constitution continues to protect our citizens’ property.”

Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.