Briefing Concludes in Supreme Court Takings Clause Case

Cedar Point Nursery and Fowler Packing Company, Inc. have filed their reply brief in a case they brought challenging whether a California regulation giving union organizers partial access to growers’ private property to meet with farmworkers during specific hours is constitutional. In last week’s Supreme Court filing, the petitioners argue that the state’s regulation violates the Takings Clause of the Fifth Amendment to the United States Constitution and must be overturned to protect the interests of landowners.

The petitioners first contend that the Ninth Circuit erroneously “endorsed a rule breathtaking in its scope: a government-authorized physical invasion of private property constitutes a per se taking only where it permits access ‘24 hours a day, 365 days a year,’” which reportedly even California fails to defend.

Instead, the petitioners propose a “narrow rule,” that the appropriation of an access easement constitutes a per se taking. The brief claims that this approach is in step with the court’s precedents, protects property owners’ right to exclude, and gives both governments and courts clear guidance.

By contrast, California argues for a rule that would largely displace the takings doctrine, according to the reply brief. The petitioners contend that the approach the state advocates for “ignores the longstanding distinction between physical invasions and regulatory use restrictions,” and would exacerbate confusion among lower courts.

Last month, the U.S. Department of Justice reconsidered its position in the case following the change in presidential administration and took the state’s side. With the briefing complete, the parties will argue before the high court on Mar. 22.

The petitioners are represented by Pacific Legal Foundation and Sagaser, Watkins & Wieland PC. The respondents are represented by the California Department of Justice.