No. 20-107
`In the Supreme Court of the United States
`
`
`
`CEDAR POINT NURSERY, ET AL., PETITIONERS
`v.
`VICTORIA HASSID, ET AL.
`
`
`
`ON WRIT OF CERTIORARI TO THE
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
`IN SUPPORT OF REVERSAL
`
`
`
` JEFFREY B. WALL
`Acting Solicitor General
`Counsel of Record
`HASHIM M. MOOPPAN
`Counselor to the
`Solicitor General
`JONATHAN D. BRIGHTBILL
`ERIC GRANT
`Deputy Assistant Attorneys
`General
`JONATHAN Y. ELLIS
`AUSTIN L. RAYNOR
`Assistants to the Solicitor
`General
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`
`
`
`
`
`

`

`QUESTION PRESENTED
`California Code of Regulations title 8, § 20900 (2020),
`requires agricultural employers to admit labor union or-
`ganizers onto the employers’ property for up to three
`hours per day, 120 days per year, on an indefinite basis,
`for the purpose of organizing the agricultural employ-
`ees on the property. The question presented is whether
`the regulation effects a per se physical taking under the
`Fifth and Fourteenth Amendments to the United States
`Constitution.
`
`
`(I)
`
`

`

`TABLE OF CONTENTS
`
`Page
`Interest of the United States....................................................... 1
`Statement ...................................................................................... 2
`A. Statutory and regulatory background ............................ 2
`B. The present controversy................................................... 5
`Summary of argument ................................................................. 8
`Argument:
`Indefinite legal authorization to physically invade
`private property, even intermittently, is a per se taking,
`absent circumstances not present here ............................... 10
`A. Permanent legal authorization to physically invade
`real property is a per se physical taking ....................... 11
`1. Government-authorized physical invasions
`impose harms distinct from government
`restrictions on the use of property .......................... 12
`2. Permanent legal authorization to physically
`invade real property warrants per se treatment ... 16
`B. By imposing an indefinite access right, the access
`regulation grants permanent legal authorization to
`physically invade real property ..................................... 20
`C. Other takings doctrines justify certain indefinite
`legal access rights, but none applies here ..................... 26
`Conclusion ................................................................................... 33
`
`TABLE OF AUTHORITIES
`
`
`
`Cases:
`ALRB v. Superior Court, 546 P.2d 687 (Cal.),
`appeal dismissed, 429 U.S. 802 (1976) ...................... 2, 3, 30
`Arkansas Game & Fish Comm’n v. United States,
`568 U.S. 23 (2012) ......................................................... 10, 27
`Armco Inc. v. Hardesty, 467 U.S. 638 (1984) ..................... 23
`Ashland Oil, Inc. v. Caryl, 497 U.S. 916 (1990) .................. 23
`Avery v. Midland County, 390 U.S. 474 (1968) .................. 23
`
`(III)
`
`

`

`IV
`
`Page
`Cases—Continued:
`Bennis v. Michigan, 516 U.S. 442 (1996) ............................ 29
`Dolan v. City of Tigard, 512 U.S. 374 (1994) ...................... 31
`FCC v. Florida Power Corp., 480 U.S. 245 (1987) .............. 25
`Horne v. Department of Agric., 576 U.S. 351 (2015) ......... 32
`Hurtado v. United States, 410 U.S. 578 (1973)................... 29
`Kaiser Aetna v. United States,
`444 U.S. 164 (1979).................................................. 13, 15, 16
`Keystone Bituminous Coal Ass’n v. DeBenedictis,
`480 U.S. 470 (1987).............................................................. 13
`Lech v. Jackson, 791 Fed. Appx. 711 (10th Cir. 2019),
`cert. denied, 141 S. Ct. 160 (2020) ..................................... 29
`Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) .......... 5, 27, 30
`Loretto v. Teleprompter Manhattan CATV Corp.,
`458 U.S. 419 (1982)..................................................... passim
`Lucas v. South Carolina Coastal Council,
`505 U.S. 1003 (1992) .......................................... 10, 11, 28, 29
`Montana Co. v. St. Louis Mining & Milling Co.,
`152 U.S. 160 (1894) ....................................................... 26
`NLRB v. Babcock & Wilcox Co.,
`351 U.S. 105 (1956)...................................................... 4, 5, 27
`Nollan v. California Coastal Comm’n,
`483 U.S. 825 (1987)..................................................... passim
`Palazzolo v. Rhode Island, 533 U.S. 606 (2001) ........... 12, 28
`Pandol & Sons v. ALRB, 429 U.S. 802 (1976) .................... 23
`Penn Central Transp. Co. v. New York City,
`438 U.S. 104 (1978)..................................... 6, 8, 10, 12, 13, 17
`Pennsylvania Coal Co. v. Mahon,
`260 U.S. 393 (1922).............................................................. 12
`Portsmouth Harbor Land & Hotel Co. v. United
`States, 260 U.S. 327 (1922) ..................................... 13, 14, 26
`Property Reserve, Inc. v. Superior Court,
`375 P.3d 887 (Cal. 2016) ..................................................... 30
`
`
`
`

`

`V
`
`Page
`
`Cases—Continued:
`PruneYard Shopping Ctr. v. Robins, 447 U.S. 74
`(1980) .................................................................................... 24
`Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) ..... 31, 32
`Tahoe-Sierra Preservation Council, Inc. v. Tahoe
`Reg’l Planning Agency, 535 U.S. 302 (2002) ................... 12
`United States v. Causby, 328 U.S. 256 (1946) ............... 14, 15
`United States v. General Motors Corp.,
`323 U.S. 373 (1945).............................................................. 11
`United States v. Pewee Coal Co., 341 U.S. 114 (1951) ....... 11
`Yee v. City of Escondido, 503 U.S. 519 (1992) .............. 13, 25
`
`Constitution, statutes, and regulations:
`U.S. Const.:
`Amend. IV ........................................................................ 29
`Amend. V .................................................................. 1, 5, 10
`Takings Clause................................ 1, 10, 11, 12, 19, 28
`Amend. XIV ................................................................. 5, 10
`National Labor Relations Act, 29 U.S.C. 151 et seq. ............ 4
`Agricultural Labor Relations Act, Cal. Lab. Code
`§§ 1140 et seq. (West 2020) ................................................... 2
`§ 1141 .................................................................................. 2
`§ 1144 .................................................................................. 2
`§ 1149 .................................................................................. 2
`§§ 1151-1151.6 .................................................................... 2
`§ 1152 .................................................................................. 2
`§ 1153(a) ............................................................................. 2
`§ 1160.3 ............................................................................... 2
`Cal. Code Regs. tit. 8 (2020):
`§ 20900 (1975) ..................................................................... 2
`§ 20900(2) (1975) ................................................................ 3
`§ 20900(4) (1975) ................................................................ 3
`
`
`
`

`

`VI
`
`Page
`Regulations—Continued:
`§ 20900(5) (1975) ................................................................ 3
`§ 20900(e)(1)(A).................................................................. 3
`§ 20900(e)(1)(B).................................................................. 3
`§ 20900(e)(1)(B)-(C) ........................................................... 4
`§ 20900(e)(1)(C).................................................................. 4
`§ 20900(e)(3) ....................................................................... 4
`§ 20900(e)(4)(A).................................................................. 4
`
`Miscellaneous:
`Restatement (Second) of Torts (1965) ..................... 22, 29, 30
`
`
`
`
`
`
`

`

`In the Supreme Court of the United States
`
`
`
`No. 20-107
`CEDAR POINT NURSERY, ET AL., PETITIONERS
`v.
`VICTORIA HASSID, ET AL.
`
`
`
`ON WRIT OF CERTIORARI TO THE
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
`IN SUPPORT OF REVERSAL
`
`
`
`INTEREST OF THE UNITED STATES
`This case concerns whether a state regulation that
`requires property owners to grant access to union or-
`ganizers is a per se taking under the Takings Clause
`of the Fifth Amendment. The United States has a sub-
`stantial interest in the preservation of constitutional
`rights and the sound development of the relevant Fifth
`Amendment principles. It also has a substantial inter-
`est in the application of those principles in the context
`of the state regulation here, given the wide range of fed-
`eral statutes and regulations that also require access to
`private property in certain circumstances.
`
`(1)
`
`

`

`2
`
`STATEMENT
`
`A. Statutory And Regulatory Background
`1. The California Agricultural Labor Relations Act
`(ALRA or Act), Cal. Lab. Code §§ 1140 et seq., guaran-
`tees agricultural employees in California “the right to
`self-organization, to form, join, or assist labor organiza-
`tions, to bargain collectively through representatives of
`their own choosing, and to engage in other concerted
`activities for the purpose of collective bargaining or
`other mutual aid or protection.” Cal. Lab. Code § 1152
`(West 2020).1 Section 1153(a) of the Act makes it an un-
`fair labor practice for an agricultural employer in Cali-
`fornia “[t]o interfere with, restrain, or coerce agricul-
`tural employees in the exercise of the rights guaranteed
`in Section 1152.” Cal. Lab. Code § 1153(a).
`The California Agricultural Labor Relations Board
`(ALRB or Board) is an administrative body created by
`the Act and tasked with its implementation and enforce-
`ment. Cal. Lab. Code § 1141; see ALRB v. Superior
`Court, 546 P.2d 687, 691-692 (Cal.) (Pandol & Sons), ap-
`peal dismissed, 429 U.S. 802 (1976). The Board is em-
`powered to investigate and adjudicate charges of unfair
`labor practices, Pandol & Sons, 546 P.2d at 691; see Cal.
`Lab. Code §§ 1149, 1151-1151.6, and to issue cease-and-
`desist orders or “such other relief as will effectuate the
`policies” of the Act, Cal. Lab. Code § 1160.3. The Act
`further authorizes the Board to “make, amend, and re-
`scind * * * such rules and regulations as may be nec-
`essary to carry out” the Act. Id. § 1144.
`2. Shortly after the Act’s enactment, the ALRB is-
`sued the regulation at issue here, California Code of
`
`
`1 Unless otherwise indicated, all references to Cal. Lab. Code are
`to the West 2020 current version.
`
`
`

`

`3
`
`Regulations title 8, § 20900 (1975) (the access regula-
`tion), which governs access by nonemployee union or-
`ganizers to the property of agricultural employers for
`the purpose of organizing agricultural employees. Pan-
`dol & Sons, 546 P.2d at 692. The Board reasoned that
`the effectiveness of agricultural employees’ organiza-
`tional rights “depends in some measure on the ability of
`employees to learn the advantages and disadvantages
`of organization from others.” Cal. Code Regs. tit. 8,
`§ 20900(2) (1975). It determined that, “[w]hen alterna-
`tive channels of effective communication are not availa-
`ble,” the ALRA requires that “accommodation be made
`between the right of unions to access and the legitimate
`property and business interests of the employer.” Ibid.
`And the Board concluded that the policies of the ALRA
`would “best be served” by the adoption of categorical
`access rules for agricultural employees, rather than the
`“[r]elegation of the issues to case-by-case adjudication.”
`Id. § 20900(4). The Board thus announced that it would
`“consider the rights of employees under [the ALRA] to
`include the right of access by union organizers to the
`premises of an agricultural employer for the purpose of
`organizing,” subject to certain conditions. Id. § 20900(5).
`Under the access regulation, in its current form, ag-
`ricultural union organizers for any particular labor or-
`ganization are permitted entry onto an agricultural em-
`ployer’s property for up to four 30-day periods in any
`calendar year. Cal. Code Regs. tit. 8, § 20900(e)(1)(A)
`(2020). Each period begins when the labor organization
`serves the property owner with, and files with the
`ALRB, a “notice of intention to take access onto the de-
`scribed property.” Id. § 20900(e)(1)(B). If a petition for
`election is filed with the Board during the 30-day pe-
`riod, the right of access does not terminate until after
`
`
`
`

`

`4
`
`the fifth day following the completion of the ballot
`count. Id. § 20900(e)(1)(B)-(C). The right of access then
`recommences either 30 days or 13 months prior to when
`another election may be directed, depending on the
`source of the election bar. Id. § 20900(e)(1)(C).
`During each period of access, union organizers may
`enter the employer’s property each day for one hour be-
`fore the start of the work day, one hour after the end of
`the work day, and one hour during the lunch period “for
`the purpose of meeting and talking with employees.”
`Cal. Code Regs. tit. 8, § 20900(e)(3) (2020). Unions may
`bring “two organizers for each work crew on the prop-
`erty,” as well as “one additional organizer for every 15
`additional workers” in a crew consisting of more than 30
`workers. Id. § 20900(e)(4)(A).
`In granting such categorical access rights, the
`ALRB departed from the approach this Court has taken
`under similar provisions of the National Labor Rela-
`tions Act (NLRA), 29 U.S.C. 151 et seq. In NLRB v.
`Babcock & Wilcox Co., 351 U.S. 105 (1956), this Court
`held that, as a general matter, the NLRA does not af-
`ford nonemployee union organizers the ability to enter
`onto an employer’s property. Id. at 112. Like the ALRB,
`the Court recognized the need for employees to “learn
`the advantages of self-organization from others.” Id. at
`113. But as relevant here, the Court held that proper
`respect for employers’ property rights dictated that,
`under the NLRA, the employer’s “right to exclude”
`yields to its employees’ organizational rights only
`“when the inaccessibility of employees makes ineffec-
`tive the reasonable attempts by nonemployees to com-
`municate with them through the usual channels” and
`only “to the extent needed to permit communication of
`
`
`
`

`

`5
`
`information on the right to organize.” Id. at 112; see
`Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992).
`B. The Present Controversy
`1. Petitioner Cedar Point Nursery operates a
`nursery in Dorris, California, raising strawberry plants.
`Pet. App. A9, G4. The nursery employs approximately
`100 year-round workers and 400 seasonal workers, none
`of whom lives on company property. Id. at A9, G9. Pe-
`titioner Fowler Packing Company engages in grape
`farming and packing operations in Fresno, California.
`Id. at A11, G4. Fowler employs 1800-2500 people in its
`field operations and 500 people in its packing facility in
`Fresno. Id. at A11, G11. Fowler’s employees likewise
`do not live on company property. Ibid.
`Cedar Point alleges that, in 2015, after entering the
`company’s property and distracting and intimidating its
`workers, the United Farm Workers union served Cedar
`Point with written notice of intention to take access
`under the access regulation. Pet. App. A10, G9-G10.
`Fowler alleges that the same union filed a charge with
`the Board asserting that Fowler unlawfully blocked un-
`ion organizers from entering Fowler’s property under
`the access regulation, after the union provided the re-
`quired notice of intention to take access. Id. at A11,
`G11. Both Cedar Point and Fowler allege that, but for
`the access regulation, they would exclude union organ-
`izers from their property. Id. at G10-G11.
`2. a. In February 2016, petitioners filed suit in the
`Eastern District of California against several members
`of the ALRB in their official capacity, contending that
`the access regulation effects an uncompensated taking
`of their property rights, in violation of the Fifth and
`Fourteenth Amendments to the U.S. Constitution. Pet.
`
`
`
`

`

`6
`
`App. G1-G25. Petitioners asked the court for a declara-
`tion that the access regulation is unconstitutional as ap-
`plied to them and an order enjoining respondents from
`enforcing the regulation against them. Id. at G16-G17.
`The district court denied a motion for a preliminary in-
`junction and dismissed petitioners’ claims. Id. at D1-
`D20 (denying preliminary injunction on takings claim);
`id. at B1-B14 (dismissing complaint).
`b. The court of appeals affirmed. Pet. App. A1-A31.
`The court reasoned that this Court’s cases recognize
`“three categories of regulatory action * * * ‘that are
`functionally equivalent to the classic taking in which
`government directly appropriates private property or
`ousts the owner from his domain’ ”: first, a regulation
`that “ ‘requires an owner to suffer a permanent physical
`invasion of her property’ ”; second, a regulation that
`“ ‘completely deprives an owner of “all economically
`beneficial us[e]” of her property’ ”; and third, a regula-
`tion of property that constitutes a taking under the mul-
`tifactor standard set forth in Penn Central Transporta-
`tion Co. v. New York City, 438 U.S. 104 (1978). Pet.
`App. A14-A15 (citation omitted). The court rejected pe-
`titioners’ contention that the access regulation effects
`an uncompensated taking by requiring petitioners to
`suffer a permanent physical invasion of their property.
`Id. at A15.
`The court of appeals recognized that this Court had
`previously held in Nollan v. California Coastal Com-
`mission, 483 U.S. 825 (1987), that requiring a property
`owner to grant a permanent easement across its beach-
`front property for the public would constitute a perma-
`nent physical occupation requiring compensation. Pet.
`App. A17 (quoting Nollan, 483 U.S. at 832). But the
`court of appeals concluded that the access regulation
`
`
`
`

`

`7
`
`did not impose a similar invasion. It reasoned that, al-
`though the regulation grants access rights without any
`“ ‘contemplated end-date,’ ” it does not grant union or-
`ganizers a “ ‘continuous right to pass to and fro,’ ” and
`thus “does not allow random members of the public to
`unpredictably traverse [petitioners’] property 24 hours
`a day, 365 days a year,” as did the easement in Nollan.
`Id. at A17-A18 (quoting Nollan, 483 U.S. at 832).
`Judge Leavy dissented. Pet. App. A26-A31. In his
`view, the takings analysis should be informed by this
`Court’s decision in Babcock & Wilcox and its progeny.
`Id. at A28-A29. Judge Leavy observed that neither
`Babcock & Wilcox nor any other decision from this
`Court has ever recognized a right of nonemployee labor
`organizers to enter an employer’s private property
`where none of the employees lived on the employer’s
`premises such that they were not accessible through
`non-trespassory means. Id. at A26. And he reasoned
`that, absent such inaccessibility, granting union organ-
`izers such “ongoing access * * * multiple times a day
`for 120 days a year” imposed “a physical, not regula-
`tory, occupation” that amounts to an unconstitutional
`uncompensated taking. Id. at A29; see id. at A26.
`c. The court of appeals denied a petition for rehear-
`ing en banc by a deeply divided vote. Pet. App. E1-E32.
`Judge Paez, joined by Judge Fletcher, both mem-
`bers of the panel majority, concurred in the denial of
`rehearing en banc. Pet. App. E4-E10. In defending the
`panel’s decision, Judge Paez reiterated the panel’s con-
`clusion that “a ‘permanent physical invasion’ occurs
`[only] when the state grants the public a ‘permanent
`and continuous right to pass to and fro, so that the real
`property may continuously be traversed.’ ” Id. at E7 (ci-
`tation omitted).
`
`
`
`

`

`8
`
`Judge Ikuta, joined by seven other judges, dissented
`from the denial of rehearing en banc. Pet. App. E10-E32.
`Judge Ikuta explained that, in her view, the access reg-
`ulation granted union organizers an “easement in
`gross” to enter the property of agricultural employers.
`Id. at E23; see id. at E23-E24. She explained that an
`easement in gross is a “ ‘personal interest’ ” in property
`that “ ‘gives its owner a right to do something on the
`land of another.’ ” Id. at E17 (citations omitted). She
`reasoned that the various restrictions on the union’s
`right of access did not alter that the regulation appro-
`priated an easement in gross because restrictions are a
`common feature of easements. Id. at E23-E24. And she
`concluded that because the access regulation had appro-
`priated an interest in real property, it constituted “a per
`se taking that requires just compensation.” Id. at E23
`(citation omitted).
`SUMMARY OF ARGUMENT
`The indefinite legal authorization to invade private
`property, even intermittently, is a per se taking, absent
`circumstances not present here.
`A. To determine whether regulatory action short of
`formal appropriation effects a taking of property, this
`Court ordinarily applies an ad hoc, factual approach un-
`der the standard articulated in Penn Central Transpor-
`tation Co. v. New York City, 438 U.S. 104 (1978). The
`Court has long recognized, however, that even under
`that approach, government-authorized physical inva-
`sions impose a unique burden on landowners that favors
`finding a taking of property. In a pair of more recent
`cases, that recognition has crystallized into a per se rule
`that, when the government permanently authorizes
`such invasions, it categorically effects a taking.
`
`
`
`

`

`9
`
`In Loretto v. Teleprompter Manhattan CATV Corp.,
`458 U.S. 419 (1982), the Court held that whenever the
`government authorizes a “permanent physical occupa-
`tion of real property,” however minimal, it effects a tak-
`ing. Id. at 427. The Court thus found that a state reg-
`ulation permitting the installation of a one-half-inch-
`diameter cable on the roof of a landlord’s property ef-
`fected a per se taking. And in Nollan v. California
`Coastal Commission, 483 U.S. 825 (1987), the Court ap-
`plied the same per se rule to the permanent authoriza-
`tion for third parties to continuously invade private
`property, even absent literal permanent occupation—
`there, a public right of access through private beach-
`front property. Id. at 831.
`B. By imposing an indefinite access right, the access
`regulation effects a taking under the same per se rule.
`Although the regulation authorizes intermittent third-
`party access (up to three hours per day, 120 days per
`year), rather than continuous (24 hours, 365 days), that
`distinction is immaterial under this Court’s takings ju-
`risprudence. Providing indefinite authorization for even
`intermittent physical invasions by third parties still de-
`prives property owners of not only the right to exclude,
`but also the right to possess and use the portions of their
`property while invaded by those third parties. And even
`if intermittent, those invasions cause the same special
`kind of injury provoked by the intrusion of a stranger.
`As a practical matter, a per se rule for any such indefi-
`nite legal access right avoids line-drawing problems that
`would be presented in determining what level of access
`short of round-the-clock would effect a taking, leaving
`such considerations to properly inform compensation.
`
`
`
`

`

`10
`
`C. The per se rule articulated in Loretto and Nollan
`is narrow. Temporary invasions not authorized pursu-
`ant to an indefinite legal access right fall outside the
`rule altogether. Thus, neither the NLRA’s inaccessibil-
`ity exception nor government-induced temporary flood-
`ings are per se takings. See Loretto, 458 U.S. at 434
`n.11; Arkansas Game & Fish Comm’n v. United States,
`568 U.S. 23, 38-39 (2012). Moreover, this Court has rec-
`ognized that even when a per se rule would otherwise
`apply, there are certain circumstances where just com-
`pensation is not required. The Court should make clear
`that the same is true here. If an access right merely
`reflects a limitation on property rights consistent with
`background principles of law, it does not qualify as a
`taking at all. See Lucas v. South Carolina Coastal
`Council, 505 U.S. 1003, 1027 (1992). And separately, the
`government may condition the performance of certain
`activities on the uncompensated cession of property
`rights. See, e.g., Nollan, 483 U.S. at 836. But none of
`those doctrines saves the regulation here.
`ARGUMENT
`
`INDEFINITE LEGAL AUTHORIZATION TO PHYSICALLY
`INVADE PRIVATE PROPERTY, EVEN INTERMITTENTLY,
`IS A PER SE TAKING, ABSENT CIRCUMSTANCES NOT
`PRESENT HERE
`The Takings Clause, as incorporated against the
`States by the Fourteenth Amendment, provides that
`“private property [shall not] be taken for public use,
`without just compensation.” U.S. Const. Amend. V; see
`Nollan v. California Coastal Comm’n, 483 U.S. 825, 827
`(1987). Whether a government regulation of property
`rights effects such a taking is typically determined by
`the multifactor balancing test set out in Penn Central
`Transportation Co. v. New York City, 438 U.S. 104 (1978).
`
`
`

`

`11
`
`Government-authorized physical invasions, however,
`impose a particularly serious burden on property
`rights, and a permanent authorization to physically in-
`vade real property effects a taking “without regard to
`whether the action achieves an important public benefit
`or has only minimal economic impact on the owner.”
`Loretto v. Teleprompter Manhattan CATV Corp., 458
`U.S. 419, 434-435 (1982). Because California’s access
`regulation legally authorizes physical invasions of agri-
`cultural employers’ property by labor organizers on an
`indefinite basis, it effects such a per se taking even if
`the invasions are intermittent. To be clear, however,
`the per se rule applied here is narrow. It does not en-
`compass temporary invasions in the absence of an indef-
`inite legal access right. And this Court has correctly
`recognized that government-authorized invasions are
`not per se takings when they are justified by back-
`ground principles of state property or tort law or im-
`posed as valid conditions on regulated conduct. No such
`doctrine justifies the access regulation, however, and so
`the Ninth Circuit’s decision should be reversed.
`A. Permanent Legal Authorization To Physically Invade
`Real Property Is A Per Se Physical Taking
`The paradigmatic application of the Takings Clause
`involves a “ ‘direct appropriation’ of property, or the
`functional equivalent of a ‘practical ouster of [the
`owner’s] possession.” Lucas v. South Carolina Coastal
`Council, 505 U.S. 1003, 1014 (1992) (citations omitted;
`brackets in original). Such a taking typically occurs, for
`example, when the government formally takes title to
`an interest in property, see, e.g., United States v. Gen-
`eral Motors Corp., 323 U.S. 373, 375 (1945), or when the
`government physically takes possession of property,
`see, e.g., United States v. Pewee Coal Co., 341 U.S. 114,
`
`
`

`

`12
`
`115 (1951). The Takings Clause, however, also con-
`strains regulatory actions short of classic takings. Ab-
`sent such protection, the Court has observed that “the
`natural tendency of human nature” would be to exercise
`an unconstrained authority to redefine property inter-
`ests “more and more until at last private property dis-
`appears.” Pennsylvania Coal Co. v. Mahon, 260 U.S.
`393, 415 (1922).
`To determine whether regulation of property has
`gone “too far,” the Court has generally “engage[d] in
`‘essentially ad hoc, factual inquiries’ ” into the circum-
`stances presented in each case. Tahoe-Sierra Preser-
`vation Council, Inc. v. Tahoe Reg’l Planning Agency,
`535 U.S. 302, 326 (2002) (citation omitted). Even under
`that standard, the Court has long recognized that
`government-authorized physical invasions—as opposed
`to restrictions on the use of property—impose distinctive
`burdens and can, in important respects, resemble clas-
`sic takings involving physical appropriation. In more re-
`cent decades, that recognition has crystallized into a per
`se rule that, when a government permanently authorizes
`physical invasions as the access regulation does here, it
`categorically effects a taking.
`1. Government-authorized physical invasions impose
`harms distinct from government restrictions on the
`use of property
`Under the familiar Penn Central standard for regu-
`latory takings, the Court considers (1) “[t]he economic
`impact of the regulation on the claimant”; (2) “the
`character of the government action”; and (3) “the extent
`to which the regulation has interfered with distinct
`investment-backed expectations.” 438 U.S. at 124. And
`although those factors represent “important guide-
`posts” for the Court’s consideration, Palazzolo v. Rhode
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`13
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`Island, 533 U.S. 606, 634 (2001) (O’Connor, J., concur-
`ring), the Court has also looked to “the purpose of the
`regulation” and, more broadly, whether “the regulation
`has unfairly singled out the property owner to bear a
`burden that should be borne by the public as a whole.”
`Yee v. City of Escondido, 503 U.S. 519, 523 (1992).
`The Court has made clear in applying that standard,
`however, that government-authorized physical inva-
`sions are a particularly serious intrusion on property
`rights. The Court has explained that the right to ex-
`clude is “one of the most essential sticks in the bundle
`of rights that are commonly characterized as property.”
`Loretto, 458 U.S. at 433 (quoting Kaiser Aetna v.
`United States, 444 U.S. 164, 176 (1979)). Thus, “[a] ‘tak-
`ing’ may more readily be found when the interference
`with property can be characterized as a physical inva-
`sion by government, than when interference arises from
`some public program adjusting the benefits and bur-
`dens of economic life to promote the common good.”
`Penn Central, 438 U.S. at 124 (citation omitted); see,
`e.g., Keystone Bituminous Coal Ass’n v. DeBenedictis,
`480 U.S. 470, 488 & n.18 (1987) (“Many cases before and
`since [Mahon] have recognized that the nature of the
`State’s action is critical in takings analysis.”).
`In Portsmouth Harbor Land & Hotel Co. v. United
`States, 260 U.S. 327 (1922), for example, the Court con-
`sidered whether the United States’ physical invasion of
`another’s property by gun fire amounted to a taking.
`The petitioner alleged that the United States had taken
`a servitude across its property located between the gov-
`ernment’s land and the ocean, by “set[ting] up heavy
`coast defense guns with the intention of firing them
`over [petitioner’s] land” and doing so on several occa-
`sions. Id. at 329; see id. at 328. Although the Court
`
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`14
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`noted that, standing alone, the occasional invasion of the
`petitioner’s land would be considered at most a tres-
`pass, not a taking, the Court explained that a more sys-
`tematic intrusion warranted different treatment. Id. at
`329-330. The Court reasoned that, if the government
`had acted “with the purpose and effect of subordinating
`[a] strip of land * * * to the right and privilege of the
`Government to fire projectiles directly across it * * *
`whenever it saw fit, in time of peace, with the result of
`depriving the owner of its profitable use, the imposition
`of such a servitude would constitute an appropriation of
`property for which compensation should be made.” Id.
`at 329 (citation omitted). Indeed, if the United States
`had the “admitted intent to fire across the claimants’
`land at will” and fired even “a single shot,” the “taking
`of a right would be complete.” Ibid.
`United States v. Causby, 328 U.S. 256 (1946), is
`similar. In that case, the United States entered into a
`month-to-month lease with a private airport for use dur-
`ing World War II. Id. at 258-259. During the leasehold,
`the government frequently and regularly flew heavy
`bombers, transports, and fighter jets in and out of the
`airport. Ibid. The respondents owned and operated a
`commercial chicken farm on their nearby land, and the
`flight path from one runway passed directly over their
`property at a height of 83 feet. Id. at 258. The respond-
`ents filed an inverse-condemnation suit. Ibid.
`This Court treated it as clear that, if the flights had
`rendered the land unusable, “there would be a taking
`compensable under the Fifth Amendment.” Causby,
`328 U.S. at 261.