How did questions about easements and the rights of union organizers to solicit prospective members end up before the Supreme Court? And at what point does an easement imposed by the government rise to the level of a taking? These are just some of the questions the United States Supreme Court will grapple with this coming week in the case of Cedar Point Nursery and Fowler Packing Company v. Hassid, Docket No. 20-107.

Property Rights

It all started back in 2015 when union organizers paid a visit to the Cedar Point Nursery and Fowler Packing Company for the express purpose of soliciting membership in the union. The union organizers acted pursuant to an access regulation (the “Access Regulation”) promulgated by the California Agricultural Relations Board (the “Board”) that granted organizers an easement to access private property for three hours each day, 120 days each year.

An easement is an interest in land owned by another that entitles the easement holder to specific limited use or enjoyment. The most common type of easement is a right of way that allows Party A access over Party B’s land for the purpose of gaining access to a property. The Nursery sued the Board on the grounds that the Access Regulation takes an easement without compensation for the benefit of union organizers in violation of the 5th and 14th amendments to the United States Constitution. The District Court dismissed the Nursery’s claim on the grounds that it failed to state a plausible taking. The Ninth Circuit Court of Appeals affirmed that decision by finding that the easement authorized by the Access Regulation was not a “classic taking in which government directly appropriates private property.”

The Court reasoned that the Access Regulation did not “allow random members of the public to unpredictably traverse their property 24 hours a day, 365 days a year,” and thus Access Regulation is not a physical taking of property requiring compensation by the government. The Court further determined that the Access Regulation did not amount to a taking because the only property right affected was “the right to exclude.” The dissent pointed out, however, that the right to exclude is “one of the fundamental sticks in the bundle of property rights.”

Supreme Court

Apart from the obvious ongoing clash between business interests and unions, how the Supreme Court decides this case may signal more broadly the extent to which governments may impose easements on private property, which will have implications for all property owners, not just business interests and unions.