`
`
`
`
`
`No. 20-107
`
`
`In The
`Supreme Court of the United States
`____________________
`
`CEDAR POINT NURSERY
`and FOWLER PACKING COMPANY, INC.,
`
`Petitioners,
`
`
`v.
`
`VICTORIA HASSID, in her official capacity as Chair
`of the Agricultural Labor Relations Board; et al.,
`
`Respondents.
`____________________
`
`On Writ of Certiorari
`to the United States Court of Appeals
`for the Ninth Circuit
`____________________
`
`REPLY BRIEF FOR PETITIONERS
`____________________
`
`JOSHUA P. THOMPSON*
`
`HOWARD A. SAGASER
` *Counsel of Record
`
`IAN B. WIELAND
` DAMIEN M. SCHIFF
` Sagaser, Watkins &
` WENCONG FA
` & Wieland PC
` 5260 North Palm Avenue, CHRISTOPHER M. KIESER
` Suite 400
`
` Pacific Legal Foundation
` Fresno, California 93704
` 930 G Street
` Telephone: (559) 421-7000 Sacramento, California 95814
` has@sw2law.com
`
` Telephone: (916) 419-7111
` ian@sw2law.com
`
` JThompson@pacificlegal.org
`
`
` DSchiff@pacificlegal.org
`
`
` WFa@pacificlegal.org
`
`
` CKieser@pacificlegal.org
`
`Counsel for Petitioners
`
`
`
`
`
`
`
`
`
`i
`
`TABLE OF CONTENTS
`
`TABLE OF AUTHORITIES ....................................... ii
`
`INTRODUCTION ....................................................... 1
`
`ARGUMENT ............................................................... 3
`
`I. The Taking of a Discrete Property
`
`Interest Triggers Per Se Treatment ................. 3
`
`A. Continuous Access Is Not Required
`
`for Per Se Treatment ...................................... 4
`
`B. The Access Regulation Takes an Access
` Easement Across Petitioners’ Property ......... 7
`
`C. The Board Misunderstands the “Narrow”
` Nature of the Per Se Rule .............................. 9
`
`II. Petitioners’ Rule Protects the
`
`Right to Exclude ............................................. 12
`
`III. Petitioners’ Rule Would Not Imperil
`
`the NLRA or Government Inspections ........... 15
`
`CONCLUSION .......................................................... 22
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`ii
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Ark. Game & Fish Comm’n v. United States,
`736 F.3d 1364 (Fed. Cir. 2013) ............................ 6
`
`Arkansas Game & Fish Commission v.
`United States,
`568 U.S. 23 (2012) ............................................... 6
`
`Benson v. South Dakota,
`710 N.W.2d 131 (S.D. 2006) ........................ 13, 20
`
`Boise Cascade Corp. v. United States,
`296 F.3d 1339 (Fed. Cir. 2002) ............................ 1
`
`Bridge Aina Le'a, LLC v.
`Hawaii Land Use Comm’n,
`No. 20-54, 2021 WL 666361
`(U.S. Feb. 22, 2021) ............................................. 2
`
`Camara v. Municipal Court,
`387 U.S. 523 (1967) ........................................... 19
`
`CCA Assocs. v. United States,
`667 F.3d 1239 (Fed. Cir. 2011) .......................... 12
`
`Cent. Hardware Co. v. NLRB,
`407 U.S. 539 (1972) ........................................... 17
`
`Chase Manhattan Bank (Nat’l Ass’n) v.
`Broadway, Whitney Co.,
`294 N.Y.S.2d 416 (Sup. Ct. 1968), aff’d,
`249 N.E.2d 767 (N.Y. 1969) ............................... 20
`
`City of Mission Hills v. Sexton,
`160 P.3d 812 (Kan. 2007) .................................. 21
`
`Colony Cove Properties, LLC v. City of Carson,
`888 F.3d 445 (9th Cir. 2018) ............................. 12
`
`
`
`
`
`
`
`iii
`
`Dolan v. City of Tigard,
`512 U.S. 374 (1994) ........................................... 15
`
`Hendler v. United States,
`952 F.2d 1364 (Fed. Cir. 1991) .................... 1, 7–8
`
`Horne v. Dep’t of Agric.,
`576 U.S. 350 (2015) ..................................... 10–11
`
`Hurtado v. United States,
`410 U.S. 578 (1973) ........................................... 18
`
`Int’l Indus. Park, Inc. v. United States,
`80 Fed. Cl. 522 (2008) ........................................ 20
`
`Jerome v. Ross,
`7 Johns. Ch. 315 (1823) ..................................... 14
`
`Kaiser Aetna v. United States,
`444 U.S. 164 (1979) ......................... 2, 5, 8, 10, 12
`
`Klemic v. Dominion Transmission, Inc.,
`138 F. Supp. 3d 673 (W.D. Va. 2015) ................ 20
`
`Lech v. Jackson,
`791 F. App’x 711 (10th Cir. 2019),
`cert. denied, 141 S. Ct. 160 (2020) .................... 18
`
`Lechmere, Inc. v. NLRB,
`502 U.S. 527 (1992) ..................................... 16–17
`
`Loretto v. Teleprompter Manhattan CATV Corp.,
`446 N.E.2d 428 (N.Y. 1983) ................................. 4
`
`Loretto v. Teleprompter Manhattan CATV Corp.,
`458 U.S. 419 (1982) ................................... passim
`
`Lucas v. S.C. Coastal Council,
`505 U.S. 1003 (1992) ..................... 7–8, 13, 15, 18
`
`Marshall v. Barlow’s, Inc.,
`436 U.S. 307 (1978) ..................................... 17, 19
`
`
`
`
`
`
`
`iv
`
`McKay v. United States,
`199 F.3d 1376 (Fed. Cir. 1999) ............................ 1
`
`New York v. Burger,
`482 U.S. 691 (1987) ..................................... 17–19
`
`NLRB v. Babcock & Wilcox Co.,
`222 F.2d 316 (5th Cir. 1955),
`aff’d, 351 U.S. 105 (1956) .................................. 16
`
`NLRB v. Babcock & Wilcox Co.,
`351 U.S. 105 (1956) ..................................... 16–17
`
`Nollan v. Cal. Coastal Comm’n,
`483 U.S. 825 (1987) ................................. 3, 10–11
`
`Payton v. New York,
`445 U.S. 573 (1980) ........................................... 19
`
`Penn Central Transportation Co. v.
`City of New York,
`438 U.S. 104 (1978) ....................................... 2, 12
`
`Portsmouth Harbor Land & Hotel Co. v.
`United States,
`260 U.S. 327 (1922) ............................. 5, 8, 15, 21
`
`PruneYard Shopping Center v. Robins,
`447 U.S. 74 (1980) ............................................. 10
`
`Rubottom v. McClure,
`4 Blackf. 505 (Ind. 1838) ................................... 14
`
`Ruckelshaus v. Monsanto,
`467 U.S. 986 (1984) ........................................... 15
`
`Sears, Roebuck & Co. v. San Diego Cty.
`Dist. Council of Carpenters,
`436 U.S. 180 (1978) ........................................... 17
`
`
`
`
`
`
`
`v
`
`Tahoe-Sierra Preservation Council, Inc. v.
`Tahoe Reg’l Planning Agency,
`535 U.S. 302 (2002) ........................... 2–3, 5, 9, 11
`
`United States v. Causby,
`328 U.S. 256 (1946) ..................................... 5, 7–8
`
`United States v. Cress,
`243 U.S. 316 (1917) ................................... 6, 9, 21
`
`United States v. Jones,
`565 U.S. 400 (2012) ........................................... 18
`
`Wilkie v. Robbins,
`551 U.S. 537 (2007) ........................................... 21
`
`Constitutions
`
`U.S. Const. amend. IV ............................................ 17
`
`Cal. Const. art. I, § 13 ............................................. 17
`
`Regulation
`
`Cal. Code Regs. tit. 8, § 20900(e)(1)(B) .................. 16
`
`Other Authorities
`
`A $1 Cable Fee For TV Hookup Upheld By
`State, N.Y. Times, May 9, 1983, at B-3,
`https://www.nytimes.com/1983/05/09/nyr
`egion/a-1-cable-fee-for-tv-hookup-upheld-
`by-state.html ........................................................ 4
`
`Letter from the Acting Solicitor General notifying
`the Court of the United States’ change in
`position (Feb. 12, 2021) ..................................... 18
`
`Sawers, Brian,
`The Right to Exclude from Unimproved Land,
`83 Temp. L. Rev. 665 (2011) ............................. 13
`
`
`
`
`
`
`
`
`
`1
`
`INTRODUCTION
`
`rule: The
`Petitioners propose a narrow
`
`appropriation of an access easement effects a per se
`taking. Any time limitation on the authorized physical
`invasion goes to the just compensation due, not
`whether a taking occurred. That rule is consistent
`with this Court’s precedents, protects the right to
`exclude, and gives both governments and courts clear
`guideposts.
`
`In rejecting Petitioners’ arguments, the Ninth
`Circuit 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.” Pet.
`App. A-18. Not even the Board defends that holding.
`Instead, the Board concedes that the Access
`Regulation authorizes a physical invasion of private
`property and that a grant of access limited to daylight
`hours “might very well qualify” as a categorical
`taking. Resp. Br. at 25–26. Although the Board
`criticizes Petitioners’ rule as unworkable, it fails to
`provide any distinction between the daylight hours
`easement that it concedes might qualify for per se
`analysis and the 3-hours-a-day, 120-days-a-year
`easement in this case, which it insists does not.
`
`is sound, and has been
`Petitioners’ rule
`
`consistently applied by the Federal Circuit. See, e.g.,
`Boise Cascade Corp. v. United States, 296 F.3d 1339,
`1355–57 (Fed. Cir. 2002); McKay v. United States, 199
`F.3d 1376, 1382 (Fed. Cir. 1999); Hendler v. United
`States, 952 F.2d 1364, 1378 (Fed. Cir. 1991). More
`importantly, Petitioners’ rule is grounded in this
`Court’s precedents, which recognize that “a physical
`invasion is a government intrusion of an unusually
`
`
`
`
`
`
`
`2
`
`character.” Loretto
`serious
`v. Teleprompter
`Manhattan CATV Corp., 458 U.S. 419, 433 (1982). A
`physical invasion amounts to a taking irrespective of
`economic impact, “even if the Government physically
`invades only an easement in property.” Kaiser Aetna
`v. United States, 444 U.S. 164, 180 (1979). Whenever
`“the government physically takes possession of an
`interest in property . . . it has a categorical duty to
`compensate
`the
`former
`owner.” Tahoe-Sierra
`Preservation Council, Inc. v. Tahoe Reg’l Planning
`Agency, 535 U.S. 302, 322 (2002). Petitioners invoke
`these principles; the Board seeks to limit them.
`
` Ultimately, the Board would render the physical
`takings doctrine largely irrelevant. It would have
`courts evaluate most physical invasions under the ad
`hoc multifactor test of Penn Central Transportation
`Co. v. City of New York, 438 U.S. 104, 124 (1978). This
`approach
`ignores
`the
`longstanding distinction
`between physical
`invasions and regulatory use
`restrictions. It would force Penn Central’s ambiguous
`test into cases where it is ill-suited, exacerbating
`confusion among lower courts. See Bridge Aina Le'a,
`LLC v. Hawaii Land Use Comm’n, No. 20-54, 2021 WL
`666361, at *1 (U.S. Feb. 22, 2021) (Thomas, J.,
`dissenting from denial of certiorari) (“A know-it-when-
`you-see-it test is no good if one court sees it and
`another does not.”). In short, the Board would carve
`out an exception to the per se rule that would
`authorize government to physically invade private
`property up to some undefined limit.
`
`The question presented here is a narrow one: does
`
`the government effect a per se taking when it
`authorizes third-party access to private property for
`three hours per day, 120 days per year? Because the
`
`
`
`
`
`
`
`3
`
`Access Regulation takes a discrete property interest
`for the benefit of union organizers, the answer is yes.
`This Court should reverse the judgment of the Ninth
`Circuit and remand the case for further proceedings.
`
`ARGUMENT
`
`I.
`
`The Taking of a Discrete Property
`Interest Triggers Per Se Treatment
`
`Where the government appropriates a discrete
`property interest, it effects a per se taking and must
`provide compensation. In Tahoe-Sierra, the Court
`recognized the “longstanding distinction” between
`government actions that take an interest in property
`and those that regulate property use. 535 U.S. at 322–
`23. Access easements fall within the former category.
`See Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 831
`(1987) (“To say that the appropriation of a public
`easement across a landowner’s premises does not
`constitute the taking of a property interest but rather
`. . . ‘a mere restriction on its use,’ is to use words in a
`manner that deprives them of all their ordinary
`meaning.”).
`
`the Access Regulation—like many
`That
`easements—limits the time, place, and manner of
`access does not transform it from a property interest
`into a use restriction. Such limitations certainly affect
`the value of the interest taken, but they do not change
`its nature. The minimal invasion in Loretto did not
`change that it was a taking, but only limited the
`amount of compensation required. See Loretto, 458
`U.S. at 437 (“Once the fact of occupation is shown, of
`course, a court should consider the extent of the
`occupation as one relevant factor in determining the
`
`
`
`
`
`
`
`4
`
`compensation due.”).1 That is not to say the occupation
`presented here is minimal—it is not2—but to explain
`that the financial value of the property interest is
`irrelevant to the question of whether an interest has
`been taken.
`A. Continuous Access Is Not Required
`for Per Se Treatment
`
`The Board objects that the Access Regulation
`authorizes only “temporary and limited” access to
`Petitioners’ property, short of the public access
`easement in Nollan and the cable box in Loretto. Resp.
`Br. at 22–23. But it concedes, as it must, that the facts
`of Nollan and Loretto do not “define the universe of
`regulations that authorize
`‘permanent physical
`occupations.’” Id. at 25. The Board even concedes that
`a daylight-hours easement “might very well qualify”
`as a per se taking. Id. at 25–26. These concessions
`undermine its repeated arguments that access must
`be “permanent” or “continuous” before categorical
`treatment is appropriate. The difference between an
`all-hours easement, a daylight-hours easement, and
`
`
`1 The cable equipment in Loretto occupied such a minimal space
`that the New York Court of Appeals upheld a one-time payment
`of one dollar as sufficient compensation for the physical invasion.
`See Loretto v. Teleprompter Manhattan CATV Corp., 446 N.E.2d
`428 (N.Y. 1983); see also A $1 Cable Fee For TV Hookup
`Upheld By State, N.Y. Times, May 9, 1983, at B-3,
`https://www.nytimes.com/1983/05/09/nyregion/a-1-cable-fee-for-
`tv-hookup-upheld-by-state.html.
`
`2 The Access Regulation represents a significant infringement of
`the property rights of California growers. See Cal. Farm Bureau
`Br. at 1–3. Moreover, as the episode at Cedar Point Nursery
`demonstrates, union organizers do not merely set up a table and
`hand out leaflets explaining labor rights; their aim is to
`intimidate. Pet. App. G-9 ¶ 30.
`
`
`
`
`
`
`
`5
`
`the Access Regulation is not a difference in kind, but
`only of degree.
`
`United States v. Causby, 328 U.S. 256 (1946), and
`Portsmouth Harbor Land & Hotel Co. v. United States,
`260 U.S. 327 (1922), further undermine the Board’s
`argument, as neither case
`involved continuous
`invasions. The Board says these cases are not
`examples of categorical takings because the Court
`described some measure of economic harm that
`occurred as a result of those easements. But this Court
`has always understood Causby and Portsmouth
`Harbor to be physical takings cases. Kaiser Aetna
`cited both cases to support its holding that an
`easement cannot be taken without compensation. See
`444 U.S. at 180. Loretto cited Portsmouth Harbor for
`the proposition that “permanent” occupations “are
`takings even
`if
`they occupy only
`relatively
`insubstantial amounts of space and do not seriously
`interfere with the landowner’s use of the rest of his
`land.” 458 U.S. at 430. And Tahoe-Sierra listed
`Causby as an example of a physical taking to
`distinguish it from examples of use restrictions. 535
`U.S. at 322. Just as importantly, the Court in both
`cases described its holding in terms of the property
`interest taken, not the economic impact to the
`property owner. See Portsmouth Harbor, 260 U.S. at
`330 (takings claim may proceed based on allegations
`that “a servitude has been imposed”); Causby, 328
`U.S. at 261–62 (takings claim may proceed upon
`allegations of “an easement of flight”).
`
`The Board next argues that the Access Regulation
`
`is not “permanent,” but “permanence” (at least as the
`Board defines it) cannot be the standard. As Judge
`Ikuta noted, “[t]he word ‘permanent’ has carried a
`
`
`
`
`
`
`
`6
`
`takings
`in
`different meanings
`of
`variety
`jurisprudence, and its meaning has changed over
`time.” Pet. App. at E-30 n.12. The Board relies on this
`malleable meaning of permanence when it cites
`Arkansas Game & Fish Commission v. United States,
`568 U.S. 23 (2012), as an example of the Court
`applying a balancing test to a “non-permanent”
`government invasion. But Arkansas Game & Fish
`held “simply and only, that government-induced
`flooding temporary in duration gains no automatic
`exemption from Takings Clause inspection.” 568 U.S.
`at 38.
`
`The Board’s reliance on a separate passage from
`
`Arkansas Game & Fish is misplaced. In that passage,
`the Court proposed several factors the Federal Circuit
`may consider on remand in deciding whether a taking
`has occurred. To the extent that discussion has any
`force here, it establishes a distinction between
`intermittent incursions of finite duration, see id. at 27,
`and intermittent incursions that impose a “permanent
`condition” on a parcel of land, see United States v.
`Cress, 243 U.S. 316, 327 (1917). The latter is
`unequivocally a per se taking under Cress. And the
`Access Regulation, like the flooding in Cress, imposes
`a permanent condition on Petitioners’ land, not one of
`finite duration.
`
`Regardless, the Court should be cautious not to
`read more into Arkansas Game & Fish than was
`intended. Indeed, the Federal Circuit on remand in
`Arkansas Game & Fish found a physical taking
`because the intermittent flooding caused “an invasion,
`in the form of a temporary flowage easement.” Ark.
`Game & Fish Comm’n v. United States, 736 F.3d 1364,
`1372 (Fed. Cir. 2013). That is consistent with Causby,
`
`
`
`
`
`
`
`7
`
`which found a taking of an overflight easement. See
`328 U.S. at 267–68. After all, nothing is truly
`permanent—“‘permanent’ does not mean forever, or
`anything like it.” Hendler, 952 F.2d at 1376. “A taking
`can be for a limited term—what is ‘taken’ is, in the
`language of real property law, an estate for years, that
`is, a term of finite duration as distinct from the
`infinite term of an estate in fee simple absolute.” Id.
`
`The intermittent nature of the access authorized
`here does not render the burden any less “permanent,”
`either conceptually or under this Court’s cases. The
`Access Regulation imposes a permanent burden on
`Petitioners’ property—the scope of that burden goes to
`the amount of compensation required, not to whether
`there is a taking.
`B. The Access Regulation Takes an Access
`Easement Across Petitioners’ Property
`
`The Board worries that Petitioners’ position
`would require
`this Court
`to make nuanced
`determinations of state property law. It is true that
`property rights are generally creatures of state law.
`See Lucas v. S.C. Coastal Council, 505 U.S. 1003,
`1029–30 (1992). But none of the Court’s physical
`invasion cases—from Portsmouth Harbor to Causby to
`Kaiser Aetna to Loretto and Nollan—required the
`Court to discern the scope of the right to exclude in
`any particular state. For good reason. The right to
`exclude is fundamental and universal in American
`law. It is therefore reasonably presumed that no
`state’s
`law of property would countenance so
`substantial an impingement on that right as an
`“easement” would impose. Ultimately, however, what
`matters is not the label one uses but rather whether
`
`
`
`
`
`
`
`8
`
`the right to exclude has been impinged in a way that
`amounts to more than a series of trespasses.3
`
`Petitioners’ discussion of the Access Regulation’s
`nature as an easement under California law, Pet. Br.
`at 17–28, highlights the impact on the right to exclude
`and why a per se test is appropriate.4 This Court has
`characterized systematic access as an “easement” to
`conceptualize the property interest taken. See, e.g.,
`Portsmouth Harbor, 260 U.S. at 330; Causby, 328 U.S.
`at 261–62; Kaiser Aetna, 444 U.S. at 180. The same is
`true of the Federal Circuit in Hendler. See 952 F.2d at
`1378 (“The evidence before the court . . . reflected a
`situation in which the Government behaved as if it
`had acquired an easement not unlike that claimed in
`Kaiser Aetna.”). Those cases demonstrate that a line
`may be drawn between a systematic invasion and a
`series of non-compensable
`trespasses without
`reference to the peculiarities of state law.
`
`It does not matter that the access required here
`does not bear all the hallmarks of an easement, i.e.,
`that it is not recorded and not transferrable. After all,
`neither were the easements in Portsmouth Harbor,
`Causby, Kaiser Aetna, or Hendler. Nor, as the Board
`concedes, does it matter whether the particular
`
`
`3 To be sure, the specific contours of state law may be relevant
`in determining whether the claimed property right exists at all.
`The background principles of a state’s property law shape the
`rights of every property owner in that state. See Lucas, 505 U.S.
`at 1029–30. See also infra at 17–19 (discussing government’s
`inherent authority to undertake reasonable searches).
`
`4 It’s not just Petitioners who describe the Access Regulation as
`an easement. As Judge Ikuta wrote about the Access Regulation,
`“[t]he right to enter onto the land of another to take some action
`is the epitome of an easement in gross.” Pet. App. E-23.
`
`
`
`
`
`
`
`9
`
`interest at issue here is described as an easement or
`an irrevocable license. See Resp. Br. at 35–36. What
`matters is that the Access Regulation takes a discrete
`property interest without just compensation.
`
`Ultimately, the importance of the easement (or
`irrevocable license) designation lies in drawing the
`line between cases where “the government physically
`takes possession of an interest in property,” Tahoe-
`Sierra, 535 U.S. at 322, and those where the
`incursions are best characterized as mere trespasses.
`While a trespass may be compensable as a tort, even
`a series of trespasses often cannot be said to take an
`interest in property, in much the same way one does
`not burden her neighbor’s land by cutting through the
`grass on occasion during an evening run. Here,
`however, the organizers’ access right is a “permanent
`condition” on Petitioners’ land. Cress, 243 U.S. at 327.
`It is a discrete property interest under any definition.
`C. The Board Misunderstands the “Narrow”
`Nature of the Per Se Rule
`
`the Loretto Court’s
`leans on
`The Board
`qualification that its holding was “very narrow.” 458
`U.S. at 441. The per se rule for physical takings is
`indeed narrow, and that is why liability disputes in
`physical takings are rare. See Tahoe-Sierra, 535 U.S.
`at 322 n.17 (“When the government condemns or
`physically appropriates the property, the fact of a
`taking is typically obvious and undisputed.”). Within
`the context of a physical invasion, this Court has been
`unequivocal that the uncompensated appropriation of
`an easement is a per se taking. It has also made clear
`that once a physical invasion is found, the extent of
`the
`invasion matters
`only
`to
`determining
`compensation. It follows that the uncompensated
`
`
`
`
`
`
`
`10
`
`taking of an easement limited in time is also a
`categorical taking.
`
`To the extent Loretto discussed easements at all,
`its analysis of Kaiser Aetna did not survive Nollan.5
`See Pet. App. E-21. It is also inconsistent with Kaiser
`Aetna itself, which, although nominally decided under
`Penn Central, categorically declared that “even if the
`Government physically invades only an easement in
`property, it must nonetheless pay just compensation.”
`Kaiser Aetna, 444 U.S. at 180. Once it is understood
`that the taking of an easement is evaluated under the
`per se framework, it follows that all easements, even
`limited ones, are entitled to categorical treatment.
`
`Loretto, read in the context of the Court’s other
`physical takings cases, supports per se treatment for
`easements that authorize physical invasions by
`people. The Board focuses on footnote 12, which, citing
`Kaiser Aetna and PruneYard Shopping Center v.
`(1980), says that “[t]he
`Robins, 447 U.S. 74
`permanence and absolute exclusivity of a physical
`occupation distinguish it from temporary limitations
`on the right to exclude.” Loretto, 458 U.S. at 435 n.12.
`Neither case stands for that proposition. As this Court
`later explained, the taking of an “easement of
`passage” is a permanent occupation of land, see
`Nollan, 483 U.S. at 831, and PruneYard is limited to
`already publicly-accessible property, id. at 832 n.1; see
`also Horne v. Dep’t of Agric., 576 U.S. 350, 364 (2015)
`
`
`5 The Court decided Kaiser Aetna before announcing the modern
`per se rules in Loretto and Lucas, so it necessarily viewed Penn
`Central as the starting point. But the Kaiser Aetna Court
`reasoned its way to a categorical rule anyway, in large part
`because the taking of an easement was “an actual physical
`invasion of the privately owned marina.” 444 U.S. at 180.
`
`
`
`
`
`
`
`11
`
`(describing PruneYard as holding “that a law limiting
`a property owner’s right to exclude certain speakers
`from an already publicly accessible shopping center
`did not take the owner’s property”). Neither do the
`“intermittent flooding cases” support the Board’s
`position. Loretto, 458 U.S. at 435 n.12. As noted above,
`at most those cases suggest that intermittent flooding
`for a term of years may require further fact-finding to
`determine whether a flowage easement was taken.
`Loretto understandably focused on the permanent
`nature of the structure attached to the apartment
`building, but later cases emphasized that the key
`inquiry is whether a property interest has been taken.
`Nollan, 483 U.S. at 831; Tahoe-Sierra, 535 U.S. at
`322. Nollan, Kaiser Aetna, Causby, Portsmouth
`Harbor, and Cress all found physical takings despite
`the lack of a “permanently” fixed object.
`
`Perhaps this explains why the Board is not quite
`willing to endorse its own reading of footnote 12, but
`instead concedes that at least some noncontinuous
`easements are per se takings. Yet on what principled
`basis? A physical invasion never morphs into a use
`restriction. The Loretto Court rejected such line-
`drawing in the context of a structure, even as the
`dissent would have held that “the incremental
`governmental intrusion caused by [a] 4- to 6-foot wire,
`which occupies the cubic volume of a child’s building
`block, is a de minimis deprivation entitled to no
`compensation.” Loretto, 458 U.S. at 448 n.6
`(Blackmun, J., dissenting). The same must be true of
`the Access Regulation. It cannot be true of some
`physical invasions but not others.
`
`Lastly, the Board’s argument that Penn Central
`could provide relief to Petitioners is spun from whole
`
`
`
`
`
`
`
`12
`
`cloth. Once Penn Central governs, a court would have
`to consider the economic impact relative to the entire
`parcel. See Penn Central, 438 U.S. at 130–31. And
`neither the Ninth nor the Federal Circuit knows of
`any Penn Central case “in which a court has found a
`taking where diminution in value was less than 50
`percent.” Colony Cove Properties, LLC v. City of
`Carson, 888 F.3d 445, 451 (9th Cir. 2018) (quoting
`CCA Assocs. v. United States, 667 F.3d 1239, 1246
`(Fed. Cir.
`2011)). No
`easement—even
`the
`“permanent” access easement in Nollan—is likely to
`diminish the value of a parcel by half. Accordingly, the
`vague line the Board proposes to draw is not merely
`between a per se taking and potential taking under
`Penn Central, but between a taking and no taking.
`
`* * *
`
`Petitioners propose a simple rule grounded in this
`Court’s precedent: the uncompensated appropriation
`of an access easement effects a per se taking. The
`Board does not defend the Ninth Circuit’s holding that
`an easement must require all day, every day access to
`merit per se treatment, and fails to propose its own
`workable rule. This Court should reverse the Ninth
`Circuit’s
`judgment and hold that the Access
`Regulation effects a per se taking of Petitioners’
`property.
`
`II.
`
`Petitioners’ Rule Protects the Right to Exclude
`
`“a
`protects
`rule
`proposed
`Petitioners’
`fundamental element of the property right.” Kaiser
`Aetna, 444 U.S. at 179–80. As Petitioners detailed in
`their opening brief, the fundamental import of the
`right to exclude is well established, from Blackstone
`
`
`
`
`
`
`
`13
`
`and Madison through modern decisions of this Court.
`Pet. Br. at 28–35. A holding that the taking of a time-
`limited easement is entitled to per se treatment would
`protect this right against government intrusions.
`Most importantly, it would prevent gamesmanship by
`governments seeking to evade their duty to provide
`just compensation by placing time-limits on third-
`party access.
`
`The Board says that historically, the right to
`exclude has not been absolute. That’s true as far as it
`goes, but it simply demonstrates that background
`principles of state law help define the scope of the
`property right. For example, the Board relies on early
`decisions to demonstrate that third parties could
`enter private property to hunt or fish under certain
`circumstances. Resp. Br. at 31–32. However, as the
`article cited by the Board explains, Resp. Br. at 32, the
`right to hunt and fish on unenclosed private lands was
`universally established before the Founding. Brian
`Sawers, The Right to Exclude from Unimproved Land,
`83 Temp. L. Rev. 665, 675–79 (2011). So-called “open
`range” and “right to roam” rules persisted well into
`the 20th century. See id. at 679–81. Such rules are the
`quintessential “background principles” of state law,
`see Lucas, 505 U.S. at 1029, as no landowner had the
`right to exclude third parties from unenclosed land.
`Landowners only gained that right as the range was
`closed.6 Here, however, there is no background
`
`
`6 A case cited by the Board for a different proposition, Resp. Br.
`at 46, makes this point explicitly. See Benson v. South Dakota,
`710 N.W.2d 131, 147 (S.D. 2006) (“[T]he law concerning hunting
`regulation upon private property . . . has been an evolution from
`no regulation commencing at statehood in 1889 to that of
`increasing regulation and criminal restrictions upon hunters to
`protect private landowners.”).
`
`
`
`
`
`
`
`14
`
`principle of California law that would authorize
`systematic, third-party occupations for 120 days each
`year.
`
`The other early cases the Board cites are similarly
`unconvincing. Jerome v. Ross, 7 Johns. Ch. 315 (1823),
`was a trespass action by a property owner against
`government officials who were authorized by statute
`to enter onto private land for the purposes of building
`a canal. The court distinguished between temporary
`and permanent use only in noting that the state would
`have to acquire through eminent domain property
`used permanently, while
`it
`could separately
`compensate each trespass. See id. at 343–44. The
`same was true of Rubottom v. McClure, 4 Blackf. 505
`(Ind. 1838), a similar trespass action against Indiana
`officials. See id. at 509 (“[W]e conclude that a statute
`of this State, which authorizes the appropriation of
`private property for the public benefit, and provides
`for a subsequent compensation for property so
`applied,
`is
`constitutional.”). Neither
`case
`demonstrates that the right to exclude was anything
`but fundamental. Quite the opposite: both cases
`contemplated compensation even for a one-time
`incursion.
`
`The Access Regulation does not merely authorize
`trespass like the statutes contemplated in Jerome and
`Rubottom. Nor does it codify an existing common law
`principle. Instead, it places a permanent condition on
`Petitioners’ land denying them the right to exclude for
`3 hours per day, 120 days per year, every year as long
`as Petitioners remain in agriculture. Such systematic
`access cannot be taken without compensation.
`
`The right to exclude requires the strong protection
`that only a per se rule can provide. Loretto, 458 U.S.
`
`
`
`
`
`
`
`15
`
`at 435 (describing the right as “one of the most
`treasured strands in an owner’s bundle of property
`rights”). Penn Central’s unworkable multifactor test is
`inadequate to protect the right from government
`interference. The absence of a per se rule will simply
`encourage governments to push the envelope and
`demand more access. Petitioners’ rule, by contrast,
`respects the right to exclude without limiting public
`rights, as governments may still condemn an access
`easement for public use where appropriate.
`
`III.
`
`Petitioners’ Rule Would Not Imperil
`the NLRA or Government Inspections
`
`The Board warns of drastic consequences it
`believes could ensue if the Court finds that the Access
`Regulation effects a per se physical taking. Resp. Br.
`at 42–47. The Board’s parade of horribles
`is
`unfounded. Not every entry onto private property is a
`physical taking. Some entries onto
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