Pacific Legal Foundation’s latest case before the Supreme Court this term is Cedar Point Nursery v. Hassid, Docket No. 20-107, with oral arguments scheduled on March 22.
The case arose out of the ever-controversial 9th Circuit Court of Appeals in California that deals with the Takings clause and land easements. A land easement is a part of a property owned by one person (Person A) that another person/entity (Person B) also has the right to use for a specific purpose. A common example of a land easement is a shared driveway between two closely situated houses.
The Constitution’s Takings Clause is a part of the 5th Amendment, which reads, “Nor shall private property be taken for public use, without just compensation.”
So the constitutional question that the Court will address is: whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment.
In a recent interview with Newsmax, Senior Attorney Damien Schiff of the Pacific Legal Foundation spoke about the constitutional issues at hand in the case and the societal implications of the Court’s potential verdict.
“The case started about five years ago as a result of two instances — Cedar Point Nursery, a strawberry seedling company that sells seedlings to growers, and Fowler Packing, which is a citrus and stone fruit packing company in Fresno, California,” Schiff explained. “Pursuant to the access regulation to the state’s Agricultural Labor Relations Board a few decades ago, representatives from the United Farm Workers union came onto the Cedar Point property early in the morning with bullhorns trying to disrupt the work of the employees and getting them to unionize.
“As you can imagine, the disruption was significant, not only for the employer, but also for the employee. The union representatives also tried to get onto the Fowler Packing’s facility over in Fresno. As a result of those two incidents, these two companies wanted to see if they could challenge the access regulation that gave on its face these representatives the right to come onto the property without the invitation of the employer, and we subsequently filed a federal lawsuit.”
The case’s constitutional argument, as Schiff puts it is, “The access regulation is unconstitutional because it is a violation of the Constitution’s takings clause because it is essentially an easement to the agricultural companies to which it applies without compensation.”
The 9th Circuit’s opinion was so broad in basically saying, “if the government doesn’t entirely deny the owner’s right to exclude and that you have to provide less than 24/7 access to a third-party, then that regulation is not a taking that requires compensation.”
That would suggest the idea that so long as the property owner was allowed to exclude people from your property for only an hour, then it’s not a constitutional taking, and the government doesn’t have to compensate the owner at all.
Schiff was quick to point out that the decision by the 9th Circuit contradicts the case-law of the Supreme Court. He mentions notably in Loretto v. Teleprompter Manhattan CATV Corp., where “the Court held that the something as small as installing a cable box that is 2ft x 3ft is de minimus [explain] that such an installation constituted a taking because of its permanence.”
Schiff spelled out the societal implications that the Supreme Court’s decision could effectuate. “If the Court were to rule in our favor, it will sure up all Americans’ property rights. If the Court were to rule otherwise, it would be very easy for governments to create all sorts of public easements without paying you anything. Under the 9th Circuit’s reasoning, most if not all of these easements would be constitutional.”
A hypothetically valid easement under the 9th Circuit’s opinion could be “You have to allow people onto your land, but only during daylight hours (9 a.m. – 6 p.m.),” therefore, the government would not have to compensate the landowner.
The constitutional problem in practical terms would substantively alter the historical understanding and development of property rights since the days of William the Conqueror.
As Schiff explains, “It can essentially allow a trespass or what amounts to a trespass for which a landowner cannot get relief. If you’re a property owner that owns property that could generate any interest to birdwatchers, hunters, or hikers, or if you have a coastal property where you have surfers and beachcombers, then you should be interested in this case for the sole reason that the government tends to use these regulations for promoting public recreation that could affect your property. If the Court and the lower courts can apply the 9th Circuit approach, more of these situations will occur with no compensation so long as they don’t grant 24/7 access to the property. “
The other side would argue that if the 9th Circuit approach is rejected, all of these inspections that the government has to conduct will go out the door, and that’s just bologna. Reasonable inspections for safety, cleanliness, etc., are not going to go away because those aren’t easements.
Schiff also mentioned how this decision could impact property gifts through bequeathment or by deeding it to a charity. Schiff thinks that these practices “could be obliterated because there’s nothing in the devisement that exempts the types of regulations from applying to that property. You might very well give a property to a charity, but that access would have to continue with the property because so long as it’s not 24/7 access, then it’s not a taking.”
The oral argument is but a few short weeks away,and one that will be surely be watched and discussed. And the outcome of the case will almost certainly have a fundamental impact on the American jurisprudence of property rights, one of the bedrock rights that sparked our War for Independence.
Michael Cozzi is a Ph.D Candidate at Catholic University in Washington D.C.
Source: Newmax
