(At Least) Nine Conceptions of Common Law in One Takings Case

 by Michael C. Dorf

Monday's SCOTUS oral argument in Cedar Point Nursery v. Hasid implicated a bewildering array of conceptions of the common law of property. In today's essay, I hope to shed some light on what's at stake. I offer a few normative points, but my chief goals are analytic.

Here's how I summarized the legal conflict last fall when the Court granted cert: 

A longstanding regulation in California grants union organizers access to agricultural workers on private property. The rule allows such access for up to three hours per day for up to thirty days at a time for up to four thirty-day periods per year. Union organizers used the rule to gain access to privately owned strawberry fields and orchards growing grapes and citrus fruit. The owners of these properties complained that the access was disruptive and, more importantly for present purposes, unconstitutional. They claimed that the state, by empowering the labor organizers to gain access to their property, had affected an unreasonable seizure in violation of the Fourth Amendment and/or a taking without just compensation in violation of the Fifth Amendment. The property owners lost in the Ninth Circuit and then successfully sought review in the SCOTUS with respect to the takings claim.

The dispute in the Supreme Court is mostly over how to categorize the California regulation. When government simply exercises its power of eminent domain to take title to property, it clearly owes just compensation. The more complicated cases involve exercises of government power that limit the property owner's rights without taking title. To oversimplify a bit, a regulation is a taking if it (a) goes "too far"; (b) amounts to a permanent physical invasion; or (c) destroys all economically viable use of the land.

Category (a), which originates with an opinion by Justice Oliver Wendell Holmes, Jr. 99 years ago, is most closely associated today with the Penn Central case. In this category, courts balance the burden on the property owner against the government's regulatory interest. Few regulations amount to takings under the Penn Central test or later refinements of it. Categories (b) and (c), by contrast, adopt per se rules. Cedar Point does not plausibly implicate category (c), because labor organizer access to farm property leaves the value of that property substantially intact. The legal battle involves whether the California regulation is a physical invasion--category (b) and most closely associated with the Loretto case--or something short of a physical invasion that thus relegates the property-owners/petitioners to relying on the Penn Central balancing test.

The case seems like something of a sport, because during the oral argument it appeared that a majority--perhaps even all--of the justices thought that the property owners should win even under the balancing test. Nonetheless, the property owners' attorney insisted that the Court should apply the per se rule. The stakes of that choice may be low for the parties here (given that the property owners will likely win either way), but potentially high in other contexts.

As Justice Barrett noted in her questioning, both sides have line-drawing problems. Can California really say that a rule granting organizers access to property 24-7 for 364 days per year is not subject to the per se rule because of the one-day interruption? If not, how about 200 says? Etc. I addressed a version of this problem in my earlier essay on the case. For the balance of today's essay, I want to focus on how the property owners' lawyer addressed his line-drawing problem. As various justices indicated, the property owners' challenge was to articulate a principle under which the California regulation is a physical invasion triggering the per se rule but that doesn't also treat as takings federal labor law or any of the hundreds of other regulatory regimes that permit government officials and third parties acting on their behalf to enter onto private property to carry out inspections, searches, etc.

Attorney Joshua Thompson, arguing for the property owners, offered three main distinctions. First, he said that in many settings, the government has the power to forbid some activity on private property altogether and can thus condition permission to engage in that activity--running a nuclear power plant or a coal mine, say--on the granting of access to government officials to come on and inspect the property to ensure compliance with various regulations. There is something to this distinction, but it relies on a background notion of permission--a kind of natural right to farm but not to dig for coal--that strikes me as potentially problematic once one acknowledges the role of the government in creating what are taken as natural rights. I shall not, however, pursue that point. Instead, I want to focus on the two other distinctions Mr. Thompson offered.

(A) Speaking in an originalist mode, Mr. Thompson argued that the common law in the states at the time of the Constitution's ratification allowed government access to property for the purposes of searching for evidence of crime (subject to what became the Fourth Amendment) and similar objectives; thus, he implied, such investigative activity simply doesn't register as a taking. Although the point did not arise in the oral argument, there was a rather strong resonance between this distinction and what the Court has sometimes said about the exceptions to the First Amendment: certain categories of what we would call speech (e.g., obscenity, fighting words, etc.) were understood as proscribable at the Founding and thus not included within the "freedom of speech" that the First Amendment protects.

I am not an originalist, but I'll put that objection aside to identify some uncertainty about timing here. Although at one point in his argument, Mr. Thompson referred to "the time of the California founding," his argument seemed to assume that the relevant scope of the property right and any assumed exceptions to it (such as for searches), was to be assessed as of 1791, when the Fifth Amendment was ratified. But we might think that there are at least five other candidate dates. Thus, we could have at least six times at which we would measure whether the background law permitted government inspectors to enter onto property without implicating the Takings Clause. They are:

1) In 1791, when the Takings Clause as part of the Fifth Amendment was adopted;

2) In 1850, when California entered the Union as a State;

3) In 1868, when the Fourteenth Amendment was ratified, thus providing the foundation for making the Takings Clause limitations applicable to the states;

4) In 1897, when Chicago B. & Q.R. Co. R. v. Chicago first applied the principle of the Takings Clause to a state rather than only to federal action;

5) In 1978, when the Penn Central case first referred to incorporation of the Takings Clause as the basis for decisions like Chicago B. & Q.R. Co. R. (which had previously been conceptualized simply as due process cases);


6) At whatever time the property at issue in a particular case was acquired, because, insofar as the Takings Clause protects reliance interests, the property owner would have relied on property law as it existed at that time.

I don't have a lot to say about how to choose among those times, except that the point seems to have been largely overlooked in Cedar Point. I will note that just last year, in Ramos v. Louisiana, the Court repeated its strong commitment to treating the content of rights against the states as identical to the parallel rights against the federal government. That approach argues rather strongly for 1) 1791.

I would also note that 6) doesn't work, because there's no good way to make a rule about what constitutes a taking of property differentiate between old and new owners. Suppose that Owen acquired a parcel of land in 2010, at a time when beachfront development was permitted. Suppose that Nicole acquired an identical and adjacent parcel in 2020, just days after the coastal commission's adoption of a rule forbidding such development. Could we say that the rule is a taking requiring just compensation (citing the Lucas case) as applied to Owen but not as applied to Nicole? Hardly. The fact that purchasers of Owen's land (who would be in the same position as Nicole) could not develop it means that the value of Owen's land has now been diminished. Perhaps Owen can get around that problem by developing the land himself, but that solution is peculiar to development; it won't work for other kinds of regulation. And in fact the Supreme Court held in 2001 that owners who acquire property after a regulation went into effect can challenge the regulation.

Notwithstanding my conclusion that 1791 is probably the right answer in light of Ramos and similar cases, I would note that the advocates and the justices seemed to pay insufficient attention to the fact that the common law of property and the accepted scope of government entries onto property could be different at any of the various times. And that's glossing over the fact that there could be variations among the states and the federal government about the content of the relevant law even at any given time.

(B) That brings me to the other means by which Mr. Thompson sought to distinguish what California did here from searches and inspections. California, he said, had effectively granted an easement, whereas searches and inspections are something else--at most analogous to a series of mere trespasses (if unauthorized). The problem here--and this is something to which the justices did pay attention during the oral argument--is that an easement and a trespass are themselves defined by law: to what body of law should one turn to discern their content? That question invokes at least three further conceptions of common law, all contemporary, although we could complicate these still further by adding multiple possible dates to each of them. Continuing the numbering from above and limiting myself to current law, we have the following:

7) California law of property and tort. California Solicitor General Michael Mongan advocated this approach and argued that, under California law, the permission to enter granted by the challenged regulation falls substantially short of an easement. As a general matter, federal courts simply accept state court rulings about the content of state law, but there are contexts--including Takings cases--in which federal courts give something short of complete deference to state court decisions in order to protect a federal interest. In their briefs, the property owners mostly seemed to accept that California law determines whether the regulation amounted to an easement and argued that it does, citing some general language and also Judge Ikuta's dissent in the Ninth Circuit.

8) But in both briefing and oral argument, the petitioners/property owners also fudged a little, saying, for example, that a regulation need not have all the characteristics of an easement under state law to be an easement for federal Takings purposes and citing SCOTUS cases that have nothing to do with California property law. That suggests that the property owners are really saying that whether there is an easement should be determined by federal common law, not state law. If so, that makes some sense. After all, this is not a case in which the California courts are manipulating or lying about the content of state law to evade their federal constitutional obligations. It's hard to see why anyone should care about whether the regulation gives labor organizers what California law determines to be an easement, as opposed to whether the regulation gives them an interest in property that constitutes a taking--and that is a federal question.

9) Yet it's not exactly a question of the federal common law of property either. The federal common law of property is somewhat under-developed; it applies in oddball contexts in which the federal government stands in the shoes of a state government, such as in territories, enclaves, and with respect to commercial obligations of and to the federal government. Even then, federal law will often borrow state law or may be found in a statute. It's not clear to me that there even is a federal common law of property that develops a robust definition of what constitutes an easement, but if there is, that too seems irrelevant to the problem in Cedar Point. A federal common law definition of an easement (if there is one) will have been developed for particular purposes that bear no necessary connection to the Takings Clause question.

Accordingly, to my mind the question is not whether the California regulation is an easement under any particular property law definition but whether it is the kind of interest in property--whatever one calls it--that triggers the per se rule of Loretto rather than the balancing test of Penn Central. To state the problem that way, however, though entirely accurate, is merely to restate the question presented in the case. The detour into easements and what we might call easement-ish-ness takes us to a dead end.

Bottom Line: I don't believe I've resolved Cedar Point, but I hope I've clarified the issues at least a little.