Pelican weighs in on major SCOTUS property rights case
by Sarah Harbison, general counsel, Pelican Institute
In 2021, the U.S. Supreme Court will hear oral arguments in Cedar Point Nursery v. Hassid, a case challenging a California regulation that allows union organizers to trespass on private property and interrupt business operations. Last week, the Pelican Institute for Public Policy’s Center for Justice was pleased to submit an amicus brief in support of the petitioners, Cedar Point Nursery and Fowler Packing Co. Several other liberty-minded organizations, including Buckeye Institute, Cato Institute, Mountain States Legal Foundation, Liberty Justice Center, and Institute for Justice, also filed amicus briefs in support of the petitioners.
Cedar Point Nursery and Fowler Packing Co. are California-based fruit growers. During the 2015 fall harvest season, while both facilities were fully staffed and tending to perishable crops, the United Farm Workers union sent organizers to the petitioners’ facilities to convince workers to join the union. The union organizers were able to disrupt the growers’ operations due to a state regulation that grants an easement to the union to enter private property three hours a day, 120 days per year, for recruitment purposes. The growers, who are represented by Pacific Legal Foundation, challenged the regulation as an uncompensated taking of private property in violation of the Fifth Amendment of the U.S. Constitution.
The Pelican Institute’s brief focuses on the growers’ right to exclude trespassers from their property. Modern takings jurisprudence often refers to the right to exclude others from privately owned property as “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” The Supreme Court has consistently held that unwanted invasions, whether permanent or temporary, are a violation of the right to exclude.
Further, it treats invasions in which the property owner has no control over the timing, extent, or nature of the invasion as particularly insulting. Despite 40 years of Supreme Court rulings recognizing a private property owner’s right to control who comes onto their property and when, California’s union access regulation requires property owners to welcome trespassers, no matter how inconvenient the timing or disruptive their conduct. If the state of California wants to provide union organizers with the right to access the growers’ property, it will need to compensate the growers for the taking.
Oral arguments will be heard in early 2021. The Pelican Institute will follow this important property rights case and continue updating its readers with developments.
 Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979).
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