Source:-https:\/\/www.capitalpress.com<\/p>\n\n\n\n
Bullhorn-wielding union organizers entering a farm before dawn may seem like a \u201cphysical invasion\u201d to many growers.<\/p>\n\n\n\n
But as long as such incursions are limited to three times per day and 120 days per year, they\u2019re sanctioned under California farm labor regulations.<\/p>\n\n\n\n
Whether California\u2019s regulatory scheme amounts to an unpaid government easement across private property \u2014 an unconstitutional taking without just compensation \u2014 will now be decided by the U.S. Supreme Court.<\/p>\n\n\n\n
Last year, the 9th U.S. Circuit Court of Appeals dismissed a lawsuit filed by Cedar Point Nursery, which complained that an unannounced pre-dawn visit from the United Farm Workers union disrupted its strawberry operation and violated its private property rights.<\/p>\n\n\n\n
The 9th Circuit reasoned that Cedar Point Nursery and another farm \u201chave not suffered a permanent physical invasion\u201d from such union activities because California\u2019s regulation \u201cdoes not allow random members of the public to unpredictably traverse their property 24 hours a day, 365 days a year.\u201d<\/p>\n\n\n\n
California\u2019s farm access regulation also only affects a farm\u2019s \u201cright to exclude others\u201d but doesn\u2019t affect the rest of its \u201cbundle of rights,\u201d such as possessing, using or selling property, according to the 9th Circuit.<\/p>\n\n\n\n
The nation\u2019s highest court has now agreed to review the 9th Circuit\u2019s ruling, which property rights advocates believe will have broad implications for landowners beyond farm employment law.<\/p>\n\n\n\n
Based on the 9th Circuit\u2019s rationale, governments can effectively create easements across private land for members of the public or others, as long as the access is restricted to certain days and times, said Damien Schiff, senior attorney with the Pacific Legal Foundation.<\/p>\n\n\n\n
\u201cThe rationale for the access doesn\u2019t really matter,\u201d Schiff said. \u201cAs long as it\u2019s not a complete wipe-out of your right to exclude people, you\u2019re not entitled to compensation.\u201d<\/p>\n\n\n\n
In Oregon and Washington, union organizers aren\u2019t allowed to enter farms as they are in California, said Tim Bernasek, agricultural attorney with the Dunn Carney law firm. \u201cFarmers can prohibit organizers on the farm and during working hours just like they can exclude anyone else.\u201d<\/p>\n\n\n\n
However, the case before the Supreme Court is significant for the overall issue of property rights infringement, since third parties were given fairly expansive parameters to access private land, he said.<\/p>\n\n\n\n
We don\u2019t know when they\u2019re coming, so it could be anytime,\u201d which the farm plaintiffs see as infringement, Bernasek said. \u201cThe other side says, \u2018No, it isn\u2019t, because it\u2019s not for a significant amount of time.’\u201d<\/p>\n\n\n\n
While California\u2019s farm access regulation is unique to that state, the 9th Circuit\u2019s approach to private property would set a \u201cvery dangerous precedent\u201d if allowed to stand, Schiff said.<\/p>\n\n\n\n
Other governments could see it as an invitation to impose similar burdens on private properties for any number of reasons, he said.<\/p>\n\n\n\n
\u201cIt gives the government basically \u2026 all it wants without paying just compensation,\u201d Schiff said. \u201cIt\u2019s a risk of the precedent being expanded beyond agricultural labor relations.\u201d<\/p>\n\n\n\n
California\u2019s government urged the Supreme Court not to review the 9th Circuit\u2019s lawsuit, arguing the ruling doesn\u2019t violate the highest court\u2019s precedents or create a \u201ccircuit split\u201d of conflicting decisions among appellate courts.<\/p>\n\n\n\n
The state\u2019s Department of Justice argued there\u2019s \u201cno indication that the access regulation poses a significant problem for California farmers,\u201d since it\u2019s only used by unions on a fraction of the state\u2019s farms.<\/p>\n\n\n\n
\u201cPetitioners speculate that these brief visits might \u2018disrupt production,\u2019 but petitioners have not actually alleged any negative economic impact on them (or anyone else) resulting from the regulation,\u201d the agency said.<\/p>\n