Cedar Point Nursery v. Hassid

Summary

A California regulation granting labor organizations a “right to take access” to an agricultural employer’s property to solicit support for unionization constitutes a per se physical taking.

Text

Page Proof Pending Publication
PRELIMINARY PRINT
Volume 594 U. S. Part 1
Pages 139–179
OFFICIAL REPORTS
OF
THE SUPREME COURT
June 23, 2021
REBECCA A. WOMELDORF
reporter of decisions
NOTICE: This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
[email protected], of any typographical or other formal errors.

Page Proof Pending Publication
139OCTOBER
TERM, 2020
Syllabus
CEDAR POINT NURSERY et al. v. HASSID et al.
certiorari to
the united states court of appeals for
the ninth circuit
No. 20–107. Argued March 22, 2021—Decided June 23, 2021
A California regulation grants labor organizations a “right to take access”
to an agricultural employer’s property in order to solicit support for
unionization. Cal. Code Regs., tit. 8, § 20900(e)(1)(C). The regulation
mandates that agricultural employers allow union organizers onto their
property for up to three hours per day, 120 days per year. Organizers
from the United Farm Workers sought to take access to property owned
by two California growers—Cedar Point Nursery and Fowler Packing
Company. The growers filed suit in Federal District Court seeking to
enjoin enforcement of the access regulation on the grounds that it appro-
priated without compensation an easement for union organizers to enter
their property and therefore constituted an unconstitutional per se phys-
ical taking under the Fifth and Fourteenth Amendments. The District
Court denied the growers’ motion for a preliminary injunction and dis-
missed the complaint, holding that the access regulation did not consti-
tute aper sephysical taking because it did not allow the public to access
the growers’ property in a permanent and continuous manner. A di-
vided panel of the Court of Appeals for the Ninth Circuit affirmed, and
rehearing en banc was denied over dissent.
Held: California’s access regulation constitutes aper sephysical taking.
Pp. 147–162.
(a) The growers’ complaint states a claim for an uncompensated
taking in violation of the Fifth and Fourteenth Amendments.
Pp. 147–159.
(1) The Takings Clause of the Fifth Amendment, applicable to the
States through the Fourteenth Amendment, provides: “[N]or shall pri-
vate property be taken for public use, without just compensation.”
When the government physically acquires private property for a public
use, the Takings Clause obligates the government to provide the owner
with just compensation.Tahoe-Sierra Preservation Council, Inc.v.
Tahoe Regional Planning Agency, 535 U. S. 302, 321. The Court as-
sesses such physical takings using aper serule: The government must
pay for what it takes.Id., at 322.
A different standard applies when the government, rather than appro-
priating private property for itself or a third party, instead imposes
regulations restricting an owner’s ability to use his own property.Id.,

Page Proof Pending Publication
140 CED
AR POINT NURSERY v. HASSID
Syllabus
at 321–322. To determine whether such a use restriction amounts to a
tak
ing, the Court has generally applied the flexible approach set forth
in Penn Central Transportation Co. v. New York City , 438 U. S. 104,
considering factors such as the economic impact of the regulation, its
interference with reasonable investment-backed expectations, and the
character of the government action. Id., at 124. But when the govern-
ment physically appropriates property, Penn Central has no place—
regardless whether the government action takes the form of a regula-
tion, statute, ordinance, or decree. Pp. 147–149.
(2) California’s access regulation appropriates a right to invade the
growers’ property and therefore constitutes a per se physical taking.
Rather than restraining the growers’ use of their own property, the
regulation appropriates for the enjoyment of third parties (here union
organizers) the owners’ right to exclude. The right to exclude is “a
fundamental element of the property right.” Kaiser Aetna v. United
States, 444 U. S. 164, 179–180. The Court’s precedents have thus
treated government-authorized physical invasions as takings requiring
just compensation. As in previous cases, the government here has ap-
propriated a right of access to private property. Because the regula-
tion appropriates a right to physically invade the growers’ property—
to literally “take access”—it constitutes aper sephysical taking under
the Court’s precedents. Pp. 149–152.
(3) The view that the access regulation cannot qualify as aper se
taking because it does not allow for permanent and continuous access
24 hours a day, 365 days a year is insupportable. The Court has held
that a physical appropriation is a taking whether it is permanent or
temporary; the duration of the appropriation bears only on the amount
of compensation due. SeeUnited Statesv.Dow, 357 U. S. 17, 26. To
be sure, the Court inLorettov.Teleprompter Manhattan CATV Corp.,
458 U. S. 419, discussed the heightened concerns associated with “[t]he
permanence and absolute exclusivity of a physical occupation” in con-
trast to “temporary limitations on the right to exclude,” and stated that
“[n]ot every physicalinvasionis a taking.”Id., at 435, n. 12. But the
regulation here is not transformed from a physical taking into a use
restriction just because the access granted is restricted to union orga-
nizers, for a narrow purpose, and for a limited time. And although the
Board disputes whether the access regulation appropriates an easement
as defined by California law, it cannot absolve itself of takings liability
by appropriating the growers’ right to exclude in a form that is a slight
mismatch from state property law.
PruneYard Shopping Centerv.Robins, 447 U. S. 74, does not cut
against the Court’s conclusion that the access regulation constitutes a

Page Proof Pending Publication
141Cite
as: 594 U. S. 139 (2021)
Syllabus
per se taking. In PruneYard the California Supreme Court recognized
a r
ight to engage in leafleting at the PruneYard, a privately owned shop-
ping center, and the Court applied thePenn Centralfactors to hold that
no compensable taking had occurred. 447 U. S., at 78, 83.PruneYard
does not establish that limited rights of access to private property
should be evaluated as regulatory rather thanper setakings. Restric-
tions on how a business generally open to the public such as the Prune-
Yard may treat individuals on the premises are readily distinguishable
from regulations granting a right to invade property closed to the pub-
lic. Pp. 152–157.
(4) The Court declines to adopt the theory that the access regula-
tion merely regulates, and does not appropriate, the growers’ right to
exclude. The right to exclude is not an empty formality that can be
modified at the government’s pleasure. Pp. 157–159.
(b) The Board’s fear that treating the access regulation as aper se
physical taking will endanger a host of state and federal government
activities involving entry onto private property is unfounded. First,
the Court’s holding does nothing to efface the distinction between tres-
pass and takings. The Court’s precedents make clear that isolated
physical invasions, not undertaken pursuant to a granted right of access,
are properly assessed as individual torts rather than appropriations of
a property right. Second, many government-authorized physical inva-
sions will not amount to takings because they are consistent with long-
standing background restrictions on property rights, including tradi-
tional common law privileges to access private property. SeeLucasv.
South Carolina Coastal Council, 505 U. S. 1003, 1028–1029. Third, the
government may require property owners to cede a right of access as
a condition of receiving certain benefits, without causing a taking.
Under this framework, government health and safety inspection re-
gimes will generally not constitute takings. In this case, however, none
of these considerations undermine the Court’s determination that the
access regulation gives rise to aper sephysical taking. Pp. 159–162.
923 F. 3d 524, reversed and remanded.
Roberts, C. J., delivered the opinion of the Court, in whichThomas,
Alito,Gorsuch,Kavanaugh, andBarrett, JJ., joined.Kavanaugh,
J., filed a concurring opinion,post, p. 162.Breyer, J., filed a dissenting
opinion, in whichSotomayorandKagan, JJ., joined,post, p. 164.
Joshua P . Thompsonargued the cause for petitioners.
With him on the briefs wereDamien M. Schiff, Wencong Fa,

Page Proof Pending Publication
142 CED
AR POINT NURSERY v. HASSID
Counsel
Christopher M. Kieser, Howard A. Sagaser, and Ian B.
Wiel
and.
Michael J. Mongan, Solicitor General of California, argued
the cause for respondents. With him on the brief were Xa-
vier Becerra, Attorney General of California, Janill L. Rich-
ards, Principal Deputy Solicitor General, Joshua Patashnik,
Deputy Solicitor General, R. Matthew Wise, Deputy Attor-
ney General, and Amari L. Hammonds, Associate Deputy
Solicitor General.*
*Briefs of amici curiae urging reversal were filed for the United States
by Acting Solicitor General Wall, Deputy Assistant Attorneys General
Brightbill and Grant, Hashim M. Mooppan, Jonathan Y . Ellis, and Au-
stin L. Raynor; for the State of Oklahoma et al. byMike Hunter,Attorney
General of Oklahoma,Mithun Mansinghani, Solicitor General, andBryan
Cleveland,Assistant Solicitor General, and by the Attorneys General for
their respective States as follows:Steve Marshallof Alabama,Mark
Brnovichof Arizona,Leslie Rutledgeof Arkansas,Daniel Cameronof
Kentucky,Jeff Landryof Louisiana,Lynn Fitchof Mississippi,Eric
Schmittof Missouri,Douglas J. Petersonof Nebraska,Alan Wilsonof
South Carolina, andKen Paxtonof Texas; for Americans for Prosperity
Foundation byCynthia Fleming CrawfordandMichael Pepson; for the
Buckeye Institute byThomas R. McCarthyandRobert Alt; for the Cato
Institute et al. byIlya ShapiroandKaren R. Harned; for the Chamber of
Commerce of the United States of America bySteffen N. Johnson, Mi-
chael W. McConnell,andDaryl Joseffer; for the Institute for Justice by
Jeffrey H. Redfern, Dana Berliner, andRobert McNamara; for the Liberty
Justice Center byJeffrey M. SchwabandDaniel Suhr; for the Mountain
States Legal Foundation byCristen WohlgemuthandDavid C. McDonald;
and by the Western Growers Association et al. byMichael M. Berger.A
brief ofamicus curiaeurging vacatur was filed for the American Farm Bu-
reau Federation byPaul J. Beard II, Ellen Steen,andTravis Cushman.
Briefs ofamici curiaeurging affirmance were filed for the Common-
wealth of Virginia et al. byMark R. Herring,Attorney General of Vir-
ginia,Toby J. Heytens,Solicitor General,Erin B. Ashwell,Chief Deputy
Attorney General,Donald D. AndersonandSamuel T. Towell,Deputy
Attorneys General, andMichelle S. KallenandJessica Merry Samuels,
Deputy Solicitors General, and by the Attorneys General for their respec-
tive jurisdictions as follows:Philip J. Weiserof Colorado,William Tong
of Connecticut,Kathleen Jenningsof Delaware,Karl A. Racineof the

Page Proof Pending Publication
143Cite
as: 594 U. S. 139 (2021)
Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Court.
A
California regulation grants labor organizations a “right
to take access” to an agricultural employer’s property in
order to solicit support for unionization. Cal. Code Regs.,
tit. 8, § 20900(e)(1)(C) (2020). Agricultural employers must
allow union organizers onto their property for up to three
hours per day, 120 days per year. The question presented
District of Columbia, Clare E. Connors of Hawaii, Kwame Raoul of Illi-
nois, Maura Healey of Massachusetts, Dana Nessel of Michigan, Keith
Ellison of Minnesota, Gurbir S. Grewal of New Jersey, Hector Balderas
of New Mexico, Letitia James of New York, Ellen F. Rosenblum of Ore-
gon, Josh Shapiro of Pennsylvania, Peter F. Neronha of Rhode Island,
Thomas J. Donovan, Jr., of Vermont, and Robert W. Ferguson of Washing-
ton; for the American Federation of Labor and Congress of Industrial
Organizations by Harold C. Becker and Matthew J. Ginsburg; for Califor-
nia Rural Legal Assistance, Inc., et al. by Verónica Meléndez and Cynthia
L. Rice; for the Constitutional Accountability Center by Elizabeth B.
Wydra and Brianne J. Gorod; for Legal Historians by Katharine M.
Mapes; for Local Governments by Jonathan B. Miller, Jessica M. Scheller,
Peter S. Holmes, Erica R. Franklin, James R. Williams, Michael L.
Rossi, Jeremy A. Avila, Christopher J. Caso, Kristin M. Bronson, Mi-
chael N. Feuer, Diana P . Cortes, and Lyndsey M. Olson; for the National
Employment Law Project et al. by Catherine K. Ruckelshaus and Brian
Chen; for the Pelican Institute for Public Policy by Sarah Harbison; for
Property Law Professors by John D. Echeverria, pro se; for the Service
Employees International Union by Leon Dayan, Nicole G. Berner, and
Claire Prestel; for United Farm Workers of America by Mario Martinez;
for the United Food and Commercial Workers Western States Council et al.
by Henry M. Willis, Michael E. Plank, David A. Rosenfeld, and Robert
P . Bonsall; and for Sen. Sheldon Whitehouse et al. byGlenn Rothner.
Briefs of amici curiae were filed for the California Farm Bureau Federa-
tion by Carl G. Borden; for the Center for Constitutional Jurisprudence by
John C. Eastmanand Anthony T. Caso; for International Lawyers Assisting
Workers Network et al. by Jeanne Mirer and Jonathan Hiatt; for the Na-
tional Association of Counties et al. by Matthew Littleton, David T. Gold-
berg, Lisa Soronen, Charles W. Thompson, Jr.,and Amanda Kellar Karras;
and for the New England Legal Foundation by John Pagliaro and Martin
J. Newhouse.

Page Proof Pending Publication
144 CED
AR POINT NURSERY v. HASSID
Opinion of the Court
is whether the access regulation constitutes a per se physical
tak
ing under the Fifth and Fourteenth Amendments.
I
The California Agricultural Labor Relations Act of 1975
gives agricultural employees a right to self-organization and
makes it an unfair labor practice for employers to interfere
with that right. Cal. Lab. Code Ann. §§ 1152, 1153(a) (West
2020). The state Agricultural Labor Relations Board has
promulgated a regulation providing, in its current form, that
the self-organization rights of employees include “the right
of access by union organizers to the premises of an agricul-
tural employer for the purpose of meeting and talking with
employees and soliciting their support.” Cal. Code Regs.,
tit. 8, § 20900(e). Under the regulation, a labor organization
may “take access” to an agricultural employer’s property
for up to four 30-day periods in one calendar year.
§§ 20900(e)(1)(A), (B). In order to take access, a labor orga-
nization must file a written notice with the Board and serve
a copy on the employer. § 20900(e)(1)(B). Two organizers
per work crew (plus one additional organizer for every 15
workers over 30 workers in a crew) may enter the employ-
er’s property for up to one hour before work, one hour during
the lunch break, and one hour after work. §§ 20900(e)(3)(A)–
(B), (4)(A). Organizers may not engage in disruptive con-
duct, but are otherwise free to meet and talk with employees
as they wish. §§ 20900(e)(3)(A), (4)(C). Interference with
organizers’ right of access may constitute an unfair labor
practice, § 20900(e)(5)(C), which can result in sanctions
against the employer, see,e. g.,Harry Carian Salesv.Ag-
ricultural Labor Relations Bd., 39 Cal. 3d 209, 231–232, 703
P. 2d 27, 42 (1985).
Cedar Point Nursery is a strawberry grower in northern
California. It employs over 400 seasonal workers and
around 100 full-time workers, none of whom live on the prop-
erty. According to the complaint, in October 2015, at five

Page Proof Pending Publication
145Cite
as: 594 U. S. 139 (2021)
Opinion of the Court
o’clock one morning, members of the United Farm Workers
entered Cedar
Point’s property without prior notice. The
organizers moved to the nursery’s trim shed, where hun-
dreds of workers were preparing strawberry plants. Call-
ing through bullhorns, the organizers disturbed operations,
causing some workers to join the organizers in a protest and
others to leave the worksite altogether. Cedar Point filed a
charge against the union for taking access without giving
notice. The union responded with a charge of its own, alleg-
ing that Cedar Point had committed an unfair labor practice.
Fowler Packing Company is a Fresno-based grower and
shipper of table grapes and citrus. It has 1,800 to 2,500 em-
ployees in its field operations and around 500 in its packing
facility. As with Cedar Point, none of Fowler’s workers live
on the premises. In July 2015, organizers from the United
Farm Workers attempted to take access to Fowler’s prop-
erty, but the company blocked them from entering. The
union filed an unfair labor practice charge against Fowler,
which it later withdrew.
Believing that the union would likely attempt to enter
their property again in the near future, the growers filed suit
in Federal District Court against several Board members in
their official capacity. The growers argued that the access
regulation effected an unconstitutionalper sephysical taking
under the Fifth and Fourteenth Amendments by appropriat-
ing without compensation an easement for union organizers
to enter their property. They requested declaratory and
injunctive relief prohibiting the Board from enforcing the
regulation against them.
The District Court denied the growers’ motion for a pre-
liminary injunction and granted the Board’s motion to dis-
miss. The court rejected the growers’ argument that the
access regulation constituted aper sephysical taking, rea-
soning that it did not “allow the public to access their prop-
erty in a permanent and continuous manner for whatever
reason.”Cedar Point Nurseryv.Gould, 2016 WL 1559271,

Page Proof Pending Publication
146 CED
AR POINT NURSERY v. HASSID
Opinion of the Court
*5 (ED Cal., Apr. 18, 2016) (emphasis deleted). In the
court’
s view, the regulation was instead subject to evaluation
under the multifactor balancing test ofPenn Central Trans-
portation Co.v.New York City, 438 U. S. 104 (1978), which
the growers had made no attempt to satisfy.Cedar Point
Nurseryv.Gould, 2016 WL 3549408, *4 (ED Cal., June 29,
2016).
A divided panel of the Court of Appeals for the Ninth
Circuit affirmed. The court identified three categories of
regulatory actions in takings jurisprudence: regulations that
impose permanent physical invasions, regulations that de-
prive an owner of all economically beneficial use of his prop-
erty, and the remainder of regulatory actions.Cedar Point
Nurseryv.Shiroma, 923 F. 3d 524, 530–531 (2019). On the
court’s understanding, while regulations in the first two cate-
gories constituteper setakings, those in the third must be
evaluated underPenn Central. 923 F. 3d, at 531. The
court agreed with the District Court that the access regula-
tion did not fall into the first category because it did not
“allow random members of the public to unpredictably tra-
verse [the growers’] property 24 hours a day, 365 days a
year.”Id., at 532. And given that the growers did not con-
tend that the regulation deprived them of all economically
beneficial use of their property,per setreatment was inap-
propriate.Id., at 531, 534.
Judge Leavy dissented. He observed that this Court had
never allowed labor organizers to enter an employer’s prop-
erty for substantial periods of time when its employees lived
off premises.Id., at 536; seeLechmere, Inc.v.NLRB, 502
U. S. 527, 540–541 (1992);NLRBv.Babcock & Wilcox Co.,
351 U. S. 105, 113 (1956). As he saw it, the regulation con-
stituted a physical occupation and therefore effected aper se
taking. 923 F. 3d, at 538.
The Ninth Circuit denied rehearing en banc. Judge Ikuta
dissented, joined by seven other judges. She reasoned that
the access regulation appropriated from the growers a tradi-

Page Proof Pending Publication
147Cite
as: 594 U. S. 139 (2021)
Opinion of the Court
tional form of private property—an easement in gross—and
transferred that
property to union organizers. Cedar Point
Nurseryv.Shiroma, 956 F. 3d 1162, 1168, 1171 (2020). The
appropriation of such an easement, she concluded, consti-
tuted aper sephysical taking under the precedents of this
Court.Id., at 1168.
We granted certiorari. 592 U. S. ––– (2020).
II
A
The Takings Clause of the Fifth Amendment, applicable
to the States through the Fourteenth Amendment, provides:
“[N]or shall private property be taken for public use, with-
out just compensation.” The Founders recognized that the
protection of private property is indispensable to the promo-
tion of individual freedom. As John Adams tersely put it,
“[p]roperty must be secured, or liberty cannot exist.” Dis-
courses on Davila, in 6 Works of John Adams 280 (C. Adams
ed. 1851). This Court agrees, having noted that protection
of property rights is “necessary to preserve freedom” and
“empowers persons to shape and to plan their own destiny
in a world where governments are always eager to do so for
them.”Murrv.Wisconsin, 582 U. S. 383, 394 (2017).
When the government physically acquires private prop-
erty for a public use, the Takings Clause imposes a clear and
categorical obligation to provide the owner with just com-
pensation.Tahoe-Sierra Preservation Council, Inc.v.
Tahoe Regional Planning Agency, 535 U. S. 302, 321 (2002).
The Court’s physical takings jurisprudence is “as old as the
Republic.”Id., at 322. The government commits a physi-
cal taking when it uses its power of eminent domain to
formally condemn property. SeeUnited Statesv.General
Motors Corp., 323 U. S. 373, 374–375 (1945);United States ex
rel. TVAv.Powelson, 319 U. S. 266, 270–271 (1943). The
same is true when the government physically takes posses-
sion of property without acquiring title to it. SeeUnited

Page Proof Pending Publication
148 CED
AR POINT NURSERY v. HASSID
Opinion of the Court
States v. Pewee Coal Co., 341 U. S. 114, 115–117 (1951) (plu-
ral
ity opinion). And the government likewise effects a
physical taking when it occupies property—say, by recurring
flooding as a result of building a dam. See United States v.
Cress, 243 U. S. 316, 327–328 (1917). These sorts of physical
appropriations constitute the “clearest sort of taking,”Pa-
lazzolov.Rhode Island, 533 U. S. 606, 617 (2001), and we
assess them using a simple,per serule: The government
must pay for what it takes. SeeTahoe-Sierra, 535 U. S.,
at 322.
When the government, rather than appropriating private
property for itself or a third party, instead imposes regula-
tions that restrict an owner’s ability to use his own property,
a different standard applies.Id., at 321–322. Our jurispru-
dence governing such use restrictions has developed more
recently. Before the 20th century, the Takings Clause was
understood to be limited to physical appropriations of prop-
erty. SeeHornev.Department of Agriculture, 576 U. S.
351, 360 (2015);Legal Tender Cases, 12 Wall. 457, 551 (1871).
InPennsylvania Coal Co.v.Mahon, 260 U. S. 393 (1922),
however, the Court established the proposition that “while
property may be regulated to a certain extent, if regulation
goes too far it will be recognized as a taking.”Id., at 415.
This framework now applies to use restrictions as varied as
zoning ordinances,Village of Euclidv.Ambler Realty Co.,
272 U. S. 365, 387–388 (1926), orders barring the mining of
gold,United Statesv.Central Eureka Mining Co., 357 U. S.
155, 168 (1958), and regulations prohibiting the sale of eagle
feathers,Andrusv.Allard, 444 U. S. 51, 65–66 (1979). To
determine whether a use restriction effects a taking, this
Court has generally applied the flexible test developed
inPenn Central, balancing factors such as the economic im-
pact of the regulation, its interference with reasonable
investment-backed expectations, and the character of the
government action. 438 U. S., at 124.

Page Proof Pending Publication
149Cite
as: 594 U. S. 139 (2021)
Opinion of the Court
Our cases have often described use restrictions that go
“too
far” as “regulatory takings.” See, e. g., Horne, 576
U. S., at 360; Yee v. Escondido, 503 U. S. 519, 527 (1992). But
that label can mislead. Government action that physically
appropriates property is no less a physical taking because it
arises from a regulation. That explains why we held that
an administrative reserve requirement compelling raisin
growers to physically set aside a percentage of their crop for
the government constituted a physical rather than a regula-
tory taking. Horne, 576 U. S., at 361. The essential ques-
tion is not, as the Ninth Circuit seemed to think, whether
the government action at issue comes garbed as a regulation
(or statute, or ordinance, or miscellaneous decree). It is
whether the government has physically taken property for
itself or someone else—by whatever means—or has instead
restricted a property owner’s ability to use his own property.
See Tahoe-Sierra, 535 U. S., at 321–323. Whenever a regu-
lation results in a physical appropriation of property, a per se
taking has occurred, and Penn Central has no place.
B
The access regulation appropriates a right to invade the
growers’ property and therefore constitutes a per se physical
taking. The regulation grants union organizers a right to
physically enter and occupy the growers’ land for three hours
per day, 120 days per year. Rather than restraining the
growers’ use of their own property, the regulation appro-
priates for the enjoyment of third parties the owners’ right
to exclude.
The right to exclude is “one of the most treasured” rights
of property ownership. Loretto v. Teleprompter Manhattan
CATV Corp., 458 U. S. 419, 435 (1982). According to Black-
stone, the very idea of property entails “that sole and des-
potic dominion which one man claims and exercises over the
external things of the world, in total exclusion of the right

Page Proof Pending Publication
150 CED
AR POINT NURSERY v. HASSID
Opinion of the Court
of any other individual in the universe.” 2 W. Blackstone,
Commentar
ies on the Laws of England 2 (1766). In less ex-
uberant terms, we have stated that the right to exclude is
“universally held to be a fundamental element of the prop-
erty right,” and is “one of the most essential sticks in the
bundle of rights that are commonly characterized as prop-
erty.”Kaiser Aetnav.United States, 444 U. S. 164, 176,
179–180 (1979); seeDolanv.City of Tigard, 512 U. S. 374,
384, 393 (1994);Nollanv.California Coastal Comm’n, 483
U. S. 825, 831 (1987); see also Merrill, Property and the Right
to Exclude, 77 Neb. L. Rev. 730 (1998) (calling the right to
exclude the “sine qua non” of property).
Given the central importance to property ownership of the
right to exclude, it comes as little surprise that the Court
has long treated government-authorized physical invasions
as takings requiring just compensation. The Court has
often described the property interest taken as a servitude
or an easement.
For example, inUnited Statesv.Causby, we held that the
invasion of private property by overflights effected a taking.
328 U. S. 256 (1946). The government frequently flew mili-
tary aircraft low over the Causby farm, grazing the treetops
and terrorizing the poultry.Id., at 259. The Court ob-
served that ownership of the land extended to airspace that
low, and that “invasions of it are in the same category as
invasions of the surface.”Id., at 265. Because the dam-
ages suffered by the Causbys “were the product of a direct
invasion of [their] domain,” we held that “a servitude has
been imposed upon the land.”Id., at 265–266, 267; see also
Portsmouth Harbor Land & Hotel Co.v.United States, 260
U. S. 327, 330 (1922) (government assertion of a right to fire
coastal defense guns across private property would consti-
tute a taking).
We similarly held that the appropriation of an easement
effected a taking inKaiser Aetnav.United States. A real-
estate developer dredged a pond, converted it into a marina,

Page Proof Pending Publication
151Cite
as: 594 U. S. 139 (2021)
Opinion of the Court
and connected it to a nearby bay and the ocean. 444 U. S.,
at 167.
The government asserted that the developer could
not exclude the public from the marina because the pond had
become a navigable water.Id., at 168. We held that the
right to exclude “falls within [the] category of interests that
the Government cannot take without compensation.”Id., at
180. After noting that “the imposition of the navigational
servitude” would “result in an actual physical invasion of the
privately owned marina” by members of the public, we cited
CausbyandPortsmouthfor the proposition that “even if the
Government physically invades only an easement in prop-
erty, it must nonetheless pay just compensation.” 444 U. S.,
at 180.
InLorettov.Teleprompter Manhattan CATV Corp., we
made clear that a permanent physical occupation constitutes
aper setaking regardless whether it results in only a trivial
economic loss. New York adopted a law requiring landlords
to allow cable companies to install equipment on their prop-
erties. 458 U. S., at 423. Loretto alleged that the installa-
tion of a ½-inch diameter cable and two 1½-cubic-foot boxes
on her roof caused a taking.Id., at 424. We agreed, stating
that where government action results in a “permanent physi-
cal occupation of property, our cases uniformly have found a
taking to the extent of the occupation, without regard to
whether the action achieves an important public benefit or
has only minimal economic impact on the owner.”Id., at
434–435.
We reiterated that the appropriation of an easement con-
stitutes a physical taking inNollanv.California Coastal
Commission. The Nollans sought a permit to build a larger
home on their beachfront lot. 483 U. S., at 828. The Cali-
fornia Coastal Commission issued the permit subject to the
condition that the Nollans grant the public an easement to
pass through their property along the beach.Ibid.As a
starting point to our analysis, we explained that, had the
Commission simply required the Nollans to grant the public

Page Proof Pending Publication
152 CED
AR POINT NURSERY v. HASSID
Opinion of the Court
an easement across their property, “we have no doubt there
would
have been a taking.” Id., at 831; see also Dolan, 512
U. S., at 384 (holding that compelled dedication of an ease-
ment for public use would constitute a taking).
More recently, in Horne v. Department of Agriculture , we
observed that “people still do not expect their property, real
or personal, to be actually occupied or taken away.” 576
U. S., at 361. The physical appropriation by the government
of the raisins in that case was a per se taking, even if a regu-
latory limit with the same economic impact would not have
been.Id., at 362; seesupra, at 149. “The Constitution,”
we explained, “is concerned with means as well as ends.”
576 U. S., at 362.
The upshot of this line of precedent is that government-
authorized invasions of property—whether by plane, boat,
cable, or beachcomber—are physical takings requiring just
compensation. As in those cases, the government here has
appropriated a right of access to the growers’ property,
allowing union organizers to traverse it at will for three
hours a day, 120 days a year. The regulation appropriates a
right to physically invade the growers’ property—to literally
“take access,” as the regulation provides. Cal. Code Regs.,
tit. 8, § 20900(e)(1)(C). It is therefore aper sephysical
taking under our precedents. Accordingly, the growers’
complaint states a claim for an uncompensated taking in
violation of the Fifth and Fourteenth Amendments.
C
The Ninth Circuit saw matters differently, as do the Board
and the dissent. In the decision below, the Ninth Circuit
took the view that the access regulation did not qualify as a
per setaking because, although it grants a right to physically
invade the growers’ property, it does not allow for perma-
nent and continuous access “24 hours a day, 365 days a year.”
923 F. 3d, at 532 (citingNollan, 483 U. S., at 832). The dis-
sent likewise concludes that the regulation cannot amount to

Page Proof Pending Publication
153Cite
as: 594 U. S. 139 (2021)
Opinion of the Court
a per se taking because it allows “access short of 365 days a
year.
” Post, at 174 (opinion of Breyer, J.). That position
is insupportable as a matter of precedent and common sense.
There is no reason the law should analyze an abrogation of
the right to exclude in one manner if it extends for 365 days,
but in an entirely different manner if it lasts for 364.
To begin with, we have held that a physical appropriation
is a taking whether it is permanent or temporary. Our cases
establish that “compensation is mandated when a leasehold
is taken and the government occupies property for its
own purposes, even though that use is temporary.”Tahoe-
Sierra, 535 U. S., at 322 (citingGeneral Motors Corp., 323
U. S. 373;United Statesv.Petty Motor Co., 327 U. S. 372
(1946)). The duration of an appropriation—just like the size
of an appropriation, seeLoretto, 458 U. S., at 436–437—bears
only on the amount of compensation. SeeUnited Statesv.
Dow, 357 U. S. 17, 26 (1958). For example, after finding a
taking by physical invasion, the Court inCausbyremanded
the case to the lower court to determine “whether the ease-
ment taken was temporary or permanent,” in order to fix the
compensation due. 328 U. S., at 267–268.
To be sure,Lorettoemphasized the heightened concerns
associated with “[t]he permanence and absolute exclusivity
of a physical occupation” in contrast to “temporary limita-
tions on the right to exclude,” and stated that “[n]ot every
physicalinvasionis a taking.” 458 U. S., at 435, n. 12; see
alsoid., at 432–435. The latter point is well taken, as we
will explain. ButNollanclarified that appropriation of a
right to physically invade property may constitute a taking
“even though no particular individual is permitted to station
himself permanently upon the premises.” 483 U. S., at 832.
Next, we have recognized that physical invasions consti-
tute takings even if they are intermittent as opposed to con-
tinuous.Causbyheld that overflights of private property
effected a taking, even though they occurred on only 4% of
takeoffs and 7% of landings at the nearby airport. 328 U. S.,

Page Proof Pending Publication
154 CED
AR POINT NURSERY v. HASSID
Opinion of the Court
at 259. And while Nollan happened to involve a legally con-
tinuous
right of access, we have no doubt that the Court
would have reached the same conclusion if the easement de-
manded by the Commission had lasted for only 364 days per
year. After all, the easement was hardly continuous as a
practical matter. As Justice Brennan observed in dissent,
given the shifting tides, “public passage for a portion of the
year would either be impossible or would not occur on [the
Nollans’] property.” 483 U. S., at 854. What matters is not
that the easement notionally ran round the clock, but that
the government had taken a right to physically invade the
Nollans’ land. And when the government physically takes
an interest in property, it must pay for the right to do so.
See Horne, 576 U. S., at 357–358; Tahoe-Sierra, 535 U. S., at
322. The fact that a right to take access is exercised only
from time to time does not make it any less a physical taking.
Even the Board declines to defend the Ninth Circuit’s ab-
solutist stance. It prudently concedes that “a requirement
that landowners grant an easement otherwise identical to
the one inNollanbut limited to daylight hours, might very
well qualify as ‘a taking without regard to other factors that
a court might ordinarily examine.’ ” Brief for Respondents
25–26 (quotingLoretto, 458 U. S., at 432; citation and some
internal quotation marks omitted). But the access regula-
tion, it contends, nevertheless fails to qualify as aper se
taking because it “authorizes only limited and intermittent
access for a narrow purpose.” Brief for Respondents 26.
That position is little more defensible than the Ninth Cir-
cuit’s. The fact that the regulation grants access only to
union organizers and only for a limited time does not trans-
form it from a physical taking into a use restriction. Saying
that appropriation of a three hour per day, 120 day per year
right to invade the growers’ premises “does not constitute a
taking of a property interest but rather . . . a mere restric-
tion on its use, is to use words in a manner that deprives
them of all their ordinary meaning.”Nollan, 483 U. S., at
831 (citation and internal quotation marks omitted).

Page Proof Pending Publication
155Cite
as: 594 U. S. 139 (2021)
Opinion of the Court
The Board also takes issue with the growers’ premise that
the access
regulation appropriates an easement. In the
Board’s estimation, the regulation does not exact a true ease-
ment in gross under California law because the access right
may not be transferred, does not burden any particular par-
cel of property, and may not be recorded. This, the Board
says, reinforces its conclusion that the regulation does not
take a constitutionally protected property interest from the
growers. The dissent agrees, suggesting that the access
right cannot effect a per se taking because it does not require
the growers to grant the union organizers an easement as
defined by state property law. Seepost, at 167, 174.
These arguments misconstrue our physical takings doc-
trine. As a general matter, it is true that the property
rights protected by the Takings Clause are creatures of state
law. SeePhillipsv.Washington Legal Foundation, 524
U. S. 156, 164 (1998);Lucasv.South Carolina Coastal Coun-
cil, 505 U. S. 1003, 1030 (1992). But no one disputes that,
without the access regulation, the growers would have had
the right under California law to exclude union organizers
from their property. SeeAllredv.Harris, 14 Cal. App. 4th
1386, 1390, 18 Cal. Rptr. 2d 530, 533 (1993). And no one
disputes that the access regulation took that right from
them. The Board cannot absolve itself of takings liability
by appropriating the growers’ right to exclude in a form that
is a slight mismatch from state easement law. Under the
Constitution, property rights “cannot be so easily manipu-
lated.”Horne, 576 U. S., at 365 (internal quotation marks
omitted); see alsoWebb’s Fabulous Pharmacies, Inc.v.
Beckwith, 449 U. S. 155, 164 (1980) (“a State, byipse dixit,
may not transform private property into public property
without compensation”).
Our decisions consistently reflect this intuitive approach.
We have recognized that the government can commit a phys-
ical taking either by appropriating property through a con-
demnation proceeding or by simply “enter[ing] into physical
possession of property without authority of a court order.”

Page Proof Pending Publication
156 CED
AR POINT NURSERY v. HASSID
Opinion of the Court
Dow, 357 U. S., at 21; see also United States v. Clarke, 445
U.
S. 253, 256–257, and n. 3 (1980). In the latter situation,
the government’s intrusion does not vest it with a property
interest recognized by state law, such as a fee simple or a
leasehold. SeeDow, 357 U. S., at 21. Yet we recognize a
physical taking all the same. Seeid., at 22. Any other re-
sult would allow the government to appropriate private
property without just compensation so long as it avoids for-
mal condemnation. We have never tolerated that outcome.
SeePewee Coal Co., 341 U. S., at 116–117. For much the
same reason, inPortsmouth,Causby, andLorettowe never
paused to consider whether the physical invasions at issue
vested the intruders with formal easements according to the
nuances of state property law (nor do we see how they could
have). Instead, we followed our traditional rule: Because
the government appropriated a right to invade, compensa-
tion was due. That same test governs here.
The Board and the dissent further contend that our deci-
sion inPruneYard Shopping Centerv.Robins, 447 U. S. 74
(1980), establishes that the access regulation cannot qualify
as aper setaking. There the California Supreme Court
held that the State Constitution protected the right to en-
gage in leafleting at the PruneYard, a privately owned shop-
ping center.Id., at 78. The shopping center argued that
the decision had taken without just compensation its right
to exclude.Id., at 82. Applying thePenn Centralfactors,
we held that no compensable taking had occurred. 447 U. S.,
at 83; cf.Heart of Atlanta Motel, Inc.v.United States, 379
U. S. 241, 261 (1964) (rejecting claim that provisions of the
Civil Rights Act of 1964 prohibiting racial discrimination in
public accommodations effected a taking).
The Board and the dissent argue thatPruneYardshows
that limited rights of access to private property should be
evaluated as regulatory rather thanper setakings. See
post, at 171. We disagree. Unlike the growers’ properties,
the PruneYard was open to the public, welcoming some

Page Proof Pending Publication
157Cite
as: 594 U. S. 139 (2021)
Opinion of the Court
25,000 patrons a day. 447 U. S., at 77–78. Limitations on
how a
business generally open to the public may treat indi-
viduals on the premises are readily distinguishable from reg-
ulations granting a right to invade property closed to the
public. SeeHorne, 576 U. S., at 364 (distinguishingPrune-
Yardas involving “an already publicly accessible” business);
Nollan, 483 U. S., at 832, n. 1 (same).
The Board also relies on our decision inNLRBv.Bab-
cock & Wilcox Co. But that reliance is misplaced. InBab-
cock, the National Labor Relations Board found that several
employers had committed unfair labor practices under the
National Labor Relations Act by preventing union organiz-
ers from distributing literature on company property. 351
U. S., at 109. We held that the statute did not require em-
ployers to allow organizers onto their property, at least out-
side the unusual circumstance where their employees were
otherwise “beyond the reach of reasonable union efforts to
communicate with them.”Id., at 113; see alsoLechmere,
502 U. S., at 540 (employees residing off company property
are presumptively not beyond the reach of the union’s mes-
sage). The Board contends thatBabcock’s approach of bal-
ancing property and organizational rights should guide our
analysis here. SeeLoretto, 458 U. S., at 434, n. 11 (discuss-
ingBabcockprinciple). ButBabcockdid not involve a
takings claim. Whatever specific takings issues may be pre-
sented by the highly contingent access right we recognized
under the NLRA, California’s access regulation effects a
per sephysical taking under our precedents. SeeTahoe-
Sierra, 535 U. S., at 322.
D
In its thoughtful opinion, the dissent advances a distinctive
view of property rights. The dissent encourages readers to
consider the issue “through the lens of ordinary English,”
and contends that, so viewed, the “regulation does notappro-
priateanything.”Post, at 166, 167. Rather, the access reg-
ulation merely “regulates. . . the owners’ right to exclude,” so

Page Proof Pending Publication
158 CED
AR POINT NURSERY v. HASSID
Opinion of the Court
it must be assessed “underPenn Central’s fact-intensive test.”
Post
, at 165, 168. “A right to enter my woods only on certain
occasions,” the dissent elaborates, “is a taking only if the regu-
lation allowing it goes ‘too far.’ ” Post, at 174. The dissent
contends that our decisions inCausby,Portsmouth, andKai-
ser Aetnaapplied just such a flexible approach, under which
the Court “balanced several factors” to determine whether the
physical invasions at issue effected a taking.Post, at 172–
173. According to the dissent, this kind of latitude toward
temporary invasions is a practical necessity for governing in
our complex modern world. Seepost, at 174–175.
With respect, our own understanding of the role of prop-
erty rights in our constitutional order is markedly different.
In “ordinary English” “appropriation” means “takingas
one’s own,” 1 Oxford English Dictionary 587 (2d ed. 1989)
(emphasis added), and the regulation expressly grants to
labor organizers the “right totakeaccess,” Cal. Code Regs.,
tit. 8, § 20900(e)(1)(C) (emphasis added). We cannot agree
that the right to exclude is an empty formality, subject to
modification at the government’s pleasure. On the contrary,
it is a “fundamental element of the property right,”Kaiser
Aetna, 444 U. S., at 179–180, that cannot be balanced away.
Our cases establish that appropriations of a right to invade
areper sephysical takings, not use restrictions subject to
Penn Central: “[W]hen [government] planes use private air-
space to approach a government airport, [the government] is
required to pay for that share no matter how small.”Tahoe-
Sierra, 535 U. S., at 322 (citingCausby). And whileKaiser
Aetnamay have referred to the test fromPenn Central, see
444 U. S., at 174–175, the Court concluded categorically that
the government must pay just compensation for physical in-
vasions, seeid., at 180 (citingCausbyandPortsmouth).
With regard to the complexities of modern society, we think
they only reinforce the importance of safeguarding the basic
property rights that help preserve individual liberty, as the
Founders explained. Seesupra, at 147.

Page Proof Pending Publication
159Cite
as: 594 U. S. 139 (2021)
Opinion of the Court
In the end, the dissent’s permissive approach to property
rights
hearkens back to views expressed (in dissent) for dec-
ades. See,e. g.,Nollan, 483 U. S., at 864 (Brennan, J., dis-
senting) (“[The Court’s] reasoning is hardly suited to the
complex reality of natural resource protection in the 20th
century.”);Loretto, 458 U. S., at 455 (Blackmun, J., dissent-
ing) (“[T]oday’s decision . . . represents an archaic judicial
response to a modern social problem.”);Causby, 328 U. S., at
275 (Black, J., dissenting) (“Today’s opinion is, I fear, an
opening wedge for an unwarranted judicial interference with
the power of Congress to develop solutions for new and vital
national problems.”). As for today’s considered dissent, it
concludes with “Better the devil we know . . . ,”post, at 179,
but its objections, to borrow from then-Justice Rehnquist’s
invocation of Wordsworth, “bear[ ] the sound of ‘Old, un-
happy, far-off things, and battles long ago,’ ”Kaiser Aetna,
444 U. S., at 177.
III
The Board, seconded by the dissent, warns that treating
the access regulation as aper sephysical taking will endan-
ger a host of state and federal government activities involv-
ing entry onto private property. Seepost, at 174–176.
That fear is unfounded.
First, our holding does nothing to efface the distinction
between trespass and takings. Isolated physical invasions,
not undertaken pursuant to a granted right of access, are
properly assessed as individual torts rather than appropria-
tions of a property right. This basic distinction is firmly
grounded in our precedent. SeePortsmouth, 260 U. S., at
329–330 (“[W]hile a single act may not be enough, a continu-
ance of them in sufficient number and for a sufficient time
may prove [the intent to take property]. Every successive
trespass adds to the force of the evidence.”); 1 P. Nichols,
The Law of Eminent Domain § 112, p. 311 (1917) (“[A] mere
occasional trespass would not constitute a taking.”). And
lower courts have had little trouble applying it. See,e. g.,

Page Proof Pending Publication
160 CED
AR POINT NURSERY v. HASSID
Opinion of the Court
Hendler v. United States, 952 F. 2d 1364, 1377 (CA Fed. 1991)
(identi
fying a “truckdriver parking on someone’s vacant land
to eat lunch” as an example of a mere trespass).
The distinction between trespass and takings accounts for
our treatment of temporary government-induced flooding in
Arkansas Game and Fish Commissionv.United States, 568
U. S. 23 (2012). There we held, “simply and only,” that such
flooding “gains no automatic exemption from Takings Clause
inspection.”Id., at 38. Because this type of flooding can
present complex questions of causation, we instructed lower
courts evaluating takings claims based on temporary flooding
to consider a range of factors including the duration of the
invasion, the degree to which it was intended or foreseeable,
and the character of the land at issue.Id., at 38–39.
Applying those factors on remand, the Federal Circuit con-
cluded that the government had effected a taking in the form
of a temporary flowage easement.Arkansas Game and
Fish Comm’nv.United States, 736 F. 3d 1364, 1372 (2013).
Our approach inArkansas Game and Fish Commissionre-
flects nothing more than an application of the traditional
trespass-versus-takings distinction to the unique considera-
tions that accompany temporary flooding.
Second, many government-authorized physical invasions
will not amount to takings because they are consistent with
longstanding background restrictions on property rights.
As we explained inLucasv.South Carolina Coastal Coun-
cil, the government does not take a property interest when
it merely asserts a “pre-existing limitation upon the land
owner’s title.” 505 U. S., at 1028–1029. For example, the
government owes a landowner no compensation for requiring
him to abate a nuisance on his property, because he never
had a right to engage in the nuisance in the first place. See
id., at 1029–1030.
These background limitations also encompass traditional
common law privileges to access private property. One such
privilege allowed individuals to enter property in the event

Page Proof Pending Publication
161Cite
as: 594 U. S. 139 (2021)
Opinion of the Court
of public or private necessity. See Restatement (Second) of
Tor
ts § 196 (1964) (entry to avert an imminent public disas-
ter); § 197 (entry to avert serious harm to a person, land, or
chattels); cf. Lucas, 505 U. S., at 1029, n. 16. The common
law also recognized a privilege to enter property to effect an
arrest or enforce the criminal law under certain circum-
stances. Restatement (Second) of Torts §§ 204–205. Be-
cause a property owner traditionally had no right to exclude
an official engaged in a reasonable search, see, e. g., Sandford
v. Nichols, 13 Mass. 286, 288 (1816), government searches
that are consistent with the Fourth Amendment and state
law cannot be said to take any property right from landown-
ers. See generally Camara v. Municipal Court of City and
County of San Francisco , 387 U. S. 523, 538 (1967).
Third, the government may require property owners to
cede a right of access as a condition of receiving certain ben-
efits, without causing a taking. In Nollan, we held that “a
permit condition that serves the same legitimate police-
power purpose as a refusal to issue the permit should not be
found to be a taking if the refusal to issue the permit would
not constitute a taking.” 483 U. S., at 836. The inquiry, we
later explained, is whether the permit condition bears an “es-
sential nexus” and “rough proportionality” to the impact of
the proposed use of the property. Dolan, 512 U. S., at 386,
391; see also Koontz v. St. Johns River Water Management
Dist., 570 U. S. 595, 599 (2013).
Under this framework, government health and safety in-
spection regimes will generally not constitute takings. See,
e. g., Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1007 (1984).
When the government conditions the grant of a benefit such
as a permit, license, or registration on allowing access for
reasonable health and safety inspections, both the nexus and
rough proportionality requirements of the constitutional con-
ditions framework should not be difficult to satisfy. See,
e. g., 7 U. S. C. § 136g(a)(1)(A) (pesticide inspections); 16
U. S. C. § 823b(a) (hydroelectric project investigations); 21

Page Proof Pending Publication
162 CED
AR POINT NURSERY v. HASSID
Kavanaugh, J., concurring
U. S. C. § 374(a)(1) (pharmaceutical inspections); 42 U. S. C.
§ 2201(
o) (nuclear material inspections).
None of these considerations undermine our determination
that the access regulation here gives rise to a per se physical
taking. Unlike a mere trespass, the regulation grants a
formal entitlement to physically invade the growers’ land.
Unlike a law enforcement search, no traditional background
principle of property law requires the growers to admit
union organizers onto their premises. And unlike standard
health and safety inspections, the access regulation is not
germane to any benefit provided to agricultural employers
or any risk posed to the public. See Horne, 576 U. S., at
366 (“basic and familiar uses of property” are not a special
benefit that “the Government may hold hostage, to be ran-
somed by the waiver of constitutional protection”). The ac-
cess regulation amounts to simple appropriation of private
property.
* * *
The access regulation grants labor organizations a right to
invade the growers’ property. It therefore constitutes a
per se physical taking.
The judgment of the United States Court of Appeals for
the Ninth Circuit is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
Justice Kavanaugh, concurring.
I join the Court’s opinion, which carefully adheres to con-
stitutional text, history, and precedent. I write separately
to explain that, in my view, the Court’s precedent in NLRB
v. Babcock & Wilcox Co., 351 U. S. 105 (1956), also strongly
supports today’s decision.
In Babcock, the National Labor Relations Board argued
that the National Labor Relations Act afforded union orga-
nizers a right to enter company property to communicate

Page Proof Pending Publication
163Cite
as: 594 U. S. 139 (2021)
Kavanaugh, J., dissenting
with employees. Several employers responded that the
Board’s
reading of the Act would infringe their Fifth Amend-
ment property rights. The employers contended that Con-
gress, “even if it could constitutionally do so, has at no time
shown any intention of destroying property rights secured
by the Fifth Amendment, in protecting employees’ rights of
collective bargaining under the Act. Until Congress should
evidence such intention by specific legislative language, our
courts should not construe the Act on such dangerous consti-
tutional grounds.” Brief for Respondent in NLRB v. Bab-
cock & Wilcox Co., O. T. 1955, No. 250, pp. 18–19.
This Court agreed with the employers’ argument that the
Act should be interpreted to avoid unconstitutionality. The
Court reasoned that “the National Government” via the
Constitution “preserves property rights,” including “the
right to exclude from property.” Babcock, 351 U. S., at 112.
Against the backdrop of the Constitution’s strong protection
of property rights, the Court interpreted the Act to afford
access to union organizers only when “needed,” ibid.—that
is, when the employees live on company property and union
organizers have no other reasonable means of communicating
with the employees, id., at 113. See also Lechmere, Inc. v.
NLRB, 502 U. S. 527, 540–541 (1992). As I read it, Babcock
recognized that employers have a basic Fifth Amendment
right to exclude from their private property, subject to a
“necessity” exception similar to that noted by the Court
today. Ante, at 161.
Babcock strongly supports the growers’ position in today’s
case because the California union access regulation intrudes
on the growers’ property rights far more than Babcock
allows. When this same California union access regulation
was challenged on constitutional grounds before the Califor-
nia Supreme Court in 1976, that court upheld the regulation
by a 4-to-3 vote. Agricultural Labor Rel. Bd. v. Superior
Ct. of Tulare Cty., 16 Cal. 3d 392, 546 P. 2d 687. Justice
William Clark wrote the dissent. Justice Clark stressed

Page Proof Pending Publication
164 CED
AR POINT NURSERY v. HASSID
Breyer, J., dissenting
that “property rights are fundamental.” Id., at 429, n. 4,
546 P
. 2d, at 712, n. 4. And he concluded that the California
union access regulation “violates the rule” ofBabcockand
thus “violates the constitutional provisions protecting pri-
vate property.” 16 Cal. 3d, at 431, 546 P. 2d, at 713. In my
view, Justice Clark had it exactly right.
With those comments, I join the Court’s opinion in full.
Justice Breyer, with whomJustice Sotomayorand
Justice Kaganjoin, dissenting.
A California regulation provides that representatives of
a labor organization may enter an agricultural employer’s
property for purposes of union organizing. They may do so
during four months of the year, one hour before the start of
work, one hour during an employee lunch break, and one
hour after work. The question before us is how to charac-
terize this regulation for purposes of the Constitution’s Tak-
ings Clause.
Does the regulationphysically appropriatethe employ-
ers’ property? If so, there is no need to look further; the
Government must pay the employers “just compensation.”
U. S. Const., Amdt. 5; seeArkansas Game and Fish Comm’n
v.United States, 568 U. S. 23, 31 (2012) (“ ‘[W]hen the gov-
ernment physically takes possession of an interest in prop-
erty for some public purpose, it has a categorical duty to
compensate the former owner’ ”). Or does the regulation
simplyregulatethe employers’ property rights? If so, then
there is every need to look further; the government need
pay the employers “just compensation” only if the regulation
“goes too far.”Pennsylvania Coal Co.v.Mahon, 260 U. S.
393, 415 (1922) (Holmes, J., for the Court); see alsoPenn Cen-
tral Transp. Co.v.New York City, 438 U. S. 104, 124 (1978)
(determining whether a regulation is a taking by examining
the regulation’s “economic impact,” the extent of interfer-
ence with “investment-backed expectations,” and the “char-
acter of the governmental action”);Arkansas Game and

Page Proof Pending Publication
165Cite
as: 594 U. S. 139 (2021)
Breyer, J., dissenting
Fish Comm’n, 568 U. S., at 38–39 (listing factors relevant to
the charac
ter of the regulation).
The Court holds that the provision’s “access to organizers”
requirement amounts to a physical appropriation of property.
In its view, virtually every government-authorized invasion
is an “appropriation.” But this regulation does not “appro-
priate” anything; it regulates the employers’ right to exclude
others. At the same time, our prior cases make clear that
the regulation before us allows only a temporary invasion of
a landowner’s property and that this kind of temporary
invasion amounts to a taking only if it goes “too far.” See,
e. g., Lorettov.Teleprompter Manhattan CATV Corp., 458
U. S. 419, 434 (1982). In my view, the majority’s conclusion
threatens to make many ordinary forms of regulation un-
usually complex or impractical. And though the majority
attempts to create exceptions to narrow its rule, seeante, at
159–162, the law’s need for feasibility suggests that the majori-
ty’s framework is wrong. With respect, I dissent from the
majority’s conclusion that the regulation is aper setaking.
I
“In view of the nearly infinite variety of ways in which
government actions or regulations can affect property inter-
ests, the Court has recognized few invariable rules in this
area.”Arkansas Game and Fish Comm’n, 568 U. S., at 31;
see alsoKaiser Aetnav.United States, 444 U. S. 164, 175
(1979) (“[T]his Court has generally ‘been unable to develop
any “set formula” for determining when “justice and fair-
ness” require that economic injuries caused by public action
be compensated by the government’ ”). Instead, most gov-
ernment action affecting property rights is analyzed case by
case underPenn Central’s fact-intensive test. Petitioners
do not argue that the provision at issue is a “regulatory tak-
ing” under that test.
Instead, the question before us is whether the access
regulation falls within one of two narrow categories of gov-

Page Proof Pending Publication
166 CED
AR POINT NURSERY v. HASSID
Breyer, J., dissenting
ernment conduct that are per se takings. The first is when
“‘
the government directly appropriates private property for
its own use.’ ”Hornev.Department of Agriculture, 576
U. S. 351, 357 (2015). The second is when the government
causes a permanent physical occupation of private property.
SeeLinglev.Chevron U. S. A. Inc., 544 U. S. 528, 538 (2005).
It does not.
A
Initially it may help to look at the legal problem—a prob-
lem of characterization—through the lens of ordinary Eng-
lish. The word “regulation” rather than “appropriation” fits
this provision in both label and substance. Cf.ante, at 149.
It is contained in Title 8 of the California Code of Regula-
tions. It was adopted by a state regulatory board, namely,
the California Agricultural Labor Relations Board, in 1975.
It is embedded in a set of related detailed regulations that
describe and limit the access at issue. In addition to the
hours of access just mentioned, it provides that union repre-
sentatives can enter the property only “for the purpose of
meeting and talking with employees and soliciting their sup-
port”; they have access only to “areas in which employees
congregate before and after working” or “at such location or
locations as the employees eat their lunch”; and they cannot
engage in “conduct disruptive of the employer’s property or
agricultural operations, including injury to crops or machin-
ery or interference with the process of boarding buses.”
§§ 20900(e), (e)(3), (e)(4)(C) (2021). From the employers’ per-
spective, it restricts when and where they can exclude others
from their property.
At the same time, the provision only awkwardly fits the
terms “physical taking” and “physical appropriation.” The
“access” that it grants union organizers does not amount to
any traditional property interest in land. It does not, for
example, take from the employers, or provide to the organiz-
ers, any freehold estate (e. g., a fee simple, fee tail, or life
estate); any concurrent estate (e. g., a joint tenancy, tenancy

Page Proof Pending Publication
167Cite
as: 594 U. S. 139 (2021)
Breyer, J., dissenting
in common, or tenancy by the entirety); or any leasehold es-
tate
(e. g., a term of years, periodic tenancy, or tenancy at
will). See J. Dukeminier, J. Krier, G. Alexander, M. Schill, &
L. Strahilevitz, Property 215–216, 222–224, 226, 343–345,
443–445 (8th ed. 2014). Nor (as all now agree) does it pro-
vide the organizers with a formal easement or access resem-
bling an easement, as the employers once argued, since it
does not burden any particular parcel of property. See, e. g.,
Balestra v. Button, 54 Cal. App. 2d 192, 197 (1942) (the bur-
den of an easement in gross is appurtenant to “the real
property of another”); Restatement (Third) of Property: Ser-
vitudes § 1.2(3) (1998) (“The burden of an easement or profit
is always appurtenant”); see also ante, at 155 (acknowledging
a “slight mismatch from state easement law”). Compare
Pet. for Cert. i (asking the Court to address “whether the
uncompensated appropriation of an easement that is limited
in time effects a per se physical taking under the Fifth
Amendment”), with Reply Brief 8 (“[T]he access required
here does not bear all the hallmarks of an easement”).
The majority concludes that the regulation nonetheless
amounts to a physical taking of property because, the major-
ity says, it “appropriates” a “right to invade” or a “right to
exclude” others. See ante, at 149, 152, 154, 156, 157, 158, 162
(right to invade); ante, at 149, 150, 153, 155, 158 (right to ex-
clude). It thereby likens this case to cases in which we have
held that appropriation of property rights amounts to a physi-
cal per se taking. See ante, at 147–148 (citing United States
v. Pewee Coal Co., 341 U. S. 114, 115 (1951) (plurality opinion)
(seizure and operation of a coal mine by the United States);
United States v. General Motors Corp., 323 U. S. 373, 375
(1945) (condemnation of a warehouse building by the United
States); Horne, 576 U. S., at 361 (transfer of “[a]ctual raisins,”
and title to the raisins, from growers to the Government)).
It is important to understand, however, that, technically
speaking, the majority is wrong. The regulation does not
appropriate anything. It does not take from the owners a

Page Proof Pending Publication
168 CED
AR POINT NURSERY v. HASSID
Breyer, J., dissenting
right to invade (whatever that might mean). It does not
give
the union organizations the right to exclude anyone. It
does not give the government the right to exclude anyone.
What does it do? It gives union organizers the right tempo-
rarily to invade a portion of the property owners’ land. It
thereby limits the landowners’ right to exclude certain
others. The regulation regulates (but does not appropriate)
the owners’ right to exclude.
Why is it important to understand this technical point?
Because only then can we understand the issue before us.
That issue is whether a regulation that temporarily limits an
owner’s right to exclude others from propertyautomatically
amounts to a Fifth Amendment taking. Under our cases, it
does not.
B
Our cases draw a distinction between regulations that pro-
vide permanent rights of access and regulations that provide
nonpermanent rights of access. They either state or hold
that the first type of regulation is a taking per se, but the
second kind is a taking only if it goes “too far.” And they
make this distinction for good reason.
Consider the Court’s reasoning in an important case in
which the Court found a per se taking. In Loretto, the
Court considered the status of a New York law that required
landlords to permit cable television companies to install cable
facilities on their property. 458 U. S., at 421. We held that
the installation amounted to a permanent physical occupa-
tion of the property and hence to a per se taking. See id.,
at 441 (“affirm[ing] the traditional rule that a permanent
physical occupation of property is a taking”); see also id., at
427 (tracing that rule back to 1872). In reaching this holding
we specifically said that “[n]ot every physical invasion is a
taking.” Id., at 435, n. 12 (emphasis deleted); see also ante,
at 153 (acknowledging that this “point is well taken”). We
explained that the “permanence and absolute exclusivity of
a physical occupation distinguish it from temporary limita-

Page Proof Pending Publication
169Cite
as: 594 U. S. 139 (2021)
Breyer, J., dissenting
tions on the right to exclude.” Loretto, 458 U. S., at 435,
n. 12.
And we provided an example of a federal statute that
did not effect a per se taking—an example almost identical
to the regulation before us. That statute provided “ ‘access
. . . limited to (i) union organizers; (ii) prescribed non-
working areas of the employer’s premises; and (iii) the dura-
tion of the organization activity.’ ”Id., at 434, n. 11 (quoting
Central Hardware Co.v.NLRB, 407 U. S. 539, 545 (1972)).
We also explained why permanent physical occupations
are distinct from temporary limitations on the right to ex-
clude. We said that, when the government permanently oc-
cupies property, it “does not simply take a single ‘strand’
from the ‘bundle’ of property rights: it chops through
the bundle, taking a slice of every strand,” “effectively de-
stroy[ing]” “the rights ‘to possess, use and dispose of it.’ ”
Loretto, 458 U. S., at 435. We added that the property
owner “ha[d] no right to possess the occupied space himself,
and also ha[d] no power to exclude the occupier from posses-
sion and use of the space.”Ibid.The requirement “forever
denie[d] the owner any power to control the use of the prop-
erty” or make any “nonpossessory use” of it.Id.,at 436.
It would “ordinarily empty the right” to sell or transfer the
occupied space “of any value, since the purchaser w[ould]
also be unable to make any use of the property.”Ibid.The
owner could not “exercise control” over the equipment’s in-
stallation, and so could not “minimize [its] physical, esthetic,
and other effects.”Id., at 441, n. 19. Thus, we concluded,
a permanent physical occupation “is perhaps the most
serious form of invasion of an owner’s property interests.”
Id., at 435.
Now considerPruneYard Shopping Centerv.Robins, 447
U. S. 74 (1980). We there considered the status of a state
constitutional requirement that a privately owned shopping
center permit other individuals to enter upon, and to use, the
property to exercise their rights to free speech and petition.
Seeid.,at 78. We held that this requirement was not aper

Page Proof Pending Publication
170 CED
AR POINT NURSERY v. HASSID
Breyer, J., dissenting
se taking in part because (even though the individuals may
have “
‘physically invaded’ ” the owner’s property) “[t]here
[wa]s nothing to suggest that preventing [the owner] from
prohibiting this sort of activity w[ould] unreasonably impair
the value or use of th[e] property as a shopping center,” and
the owner could “adop[t] time, place, and manner regulations
that w[ould] minimize any interference with its commercial
functions.” Id., at 83–84; see also Loretto, 458 U. S., at 434
(describing the “invasion” in PruneYard as “temporary and
limited in nature”).
In Nollan v. California Coastal Comm’n, 483 U. S. 825
(1987), we held that the State’s taking of an easement across
a landowner’s property did constitute a per se taking. But
consider the Court’s reason: “[I]ndividuals are given a per-
manent and continuous right to pass to and fro.” Id., at
832 (emphasis added). We clarified that by “permanent” and
“continuous” we meant that the “real property may continu-
ously be traversed, even though no particular individual is
permitted to station himself permanently upon the prem-
ises.” Ibid.
In Arkansas Game and Fish Comm’n, 568 U. S. 23, we
again said that permanent physical occupations are per se
takings, but temporary invasions are not. Rather, they
“ ‘are subject to a more complex balancing process to deter-
mine whether they are a taking.’ ”Id.,at 36; see alsoid.,
at 38–39 (courts should consider the length of the invasion,
the “degree to which the invasion is intended or is the
foreseeable result of authorized government action,” “the
character of the land at issue,” “the owner’s ‘reasonable
investment-backed expectations’ regarding the land’s use,”
and the “[s]everity of the interference” (citing,inter alia,
Penn Central, 438 U. S., at 130–131)).
As these cases have used the terms, the regulation here at
issue provides access that is “temporary,” not “permanent.”
Unlike the regulation inLoretto, it does not place a “fixed
structure on land or real property.” 458 U. S., at 437. The

Page Proof Pending Publication
171Cite
as: 594 U. S. 139 (2021)
Breyer, J., dissenting
employers are not “forever denie[d]” “any power to control
the use”
of any particular portion of their property. Id., at
436. And it does not totally reduce the value of any section
of the property. Ibid. Unlike in Nollan, the public cannot
walk over the land whenever it wishes; rather a subset of
the public may enter a portion of the land three hours per
day for four months per year (about 4% of the time). At
bottom, the regulation here, unlike the regulations in Loretto
and Nollan, is not “functionally equivalent to the classic tak-
ing in which government directly appropriates private prop-
erty or ousts the owner from his domain.” Lingle, 544 U. S.,
at 539.
At the same time, PruneYard’s holding that the taking
was “temporary” (and hence not a per se taking) fits this case
almost perfectly. There the regulation gave non-owners the
right to enter privately owned property for the purpose of
speaking generally to others, about matters of their choice,
subject to reasonable time, place, and manner restrictions.
447 U. S., at 83. The regulation before us grants a far
smaller group of people the right to enter landowners’ prop-
erty for far more limited times in order to speak about a
specific subject. Employers have more power to control
entry by setting work hours, lunch hours, and places of gath-
ering. On the other hand, as the majority notes, the shop-
ping center in PruneYard was open to the public generally.
See ante, at 156–157. All these factors, however, are the
stuff of which regulatory-balancing, not absolute per se, rules
are made.
Our cases have recognized, as the majority says, that the
right to exclude is a “ ‘fundamental element of the property
right.’ ” Ante, at 158. For that reason, “[a] ‘taking’ may
more readily be found when the interference with property
can be characterized as a physical invasion by government.”
Penn Central, 438 U. S., at 124 (emphasis added); see also
Loretto, 458 U. S., at 426 (“[W]e have long considered a phys-
ical intrusion by government to be a property restriction of

Page Proof Pending Publication
172 CED
AR POINT NURSERY v. HASSID
Breyer, J., dissenting
an unusually serious character for purposes of the Takings
Clause”). But
a taking is not inevitably found just because
the interference with property can be characterized as a
physical invasion by the government, or, in other words,
when it affects the right to exclude.
The majority refers to other cases. But those cases do
not help its cause. That is because the Court in those cases
(some of which preceded Penn Central and others of which
I have discussed above) did not apply a “per se takings” ap-
proach. But see ante, at 156 (claiming that our “traditional
rule” is that when “the government appropriate[s] a right to
invade, compensation [i]s due”). In United States v. Causby,
328 U. S. 256, 259 (1946), for example, the question was
whether government flights over a piece of land constituted
a taking. The flights amounted to 4% of the takeoffs, and
7% of the landings, at a nearby airport. See ibid. But the
planes flew “in considerable numbers and rather close to-
gether.” Ibid. And the flights were “so low and so fre-
quent as to be a direct and immediate interference with the
enjoyment and use of the land.” Id., at 266. Taken to-
gether, those flights “destr[oyed] the use of the property as
a commercial chicken farm.” Id., at 259. Based in part on
that economic damage, the Court found that the rule allow-
ing these overflights went “too far.” See id., at 266 (“ ‘[I]t
is the character of the invasion, not the amount of damage
resulting from it, so long as the damage is substantial, that
determines the question whether it is a taking’ ” (emphasis
added)).
In Portsmouth Harbor Land & Hotel Co. v. United States,
260 U. S. 327, 329 (1922), the Court held that the Govern-
ment’s firing of guns across private property would be a tak-
ing only if the shots were sufficiently frequent to establish
an “intent to fire across the claimants’ land at will.” The
frequency of the projectiles itself mattered less than whether
the Government acted “ ‘with the purpose and effect of sub-
ordinating the strip of land . . . to the right and privilege of

Page Proof Pending Publication
173Cite
as: 594 U. S. 139 (2021)
Breyer, J., dissenting
the Government to fire projectiles directly across it for the
purpose
of practice or otherwise, whenever it saw fit, in time
of peace, with the result of depriving the owner of its profit-
able use.’ ” Ibid. (emphasis added). Again, the Court bal-
anced several factors—permanence, severity, and economic
impact—rather than treating the mere fact of entry as
dispositive.
In Kaiser Aetna v. United States, 444 U. S. 164, the Court
considered whether the Government had taken property by
converting a formerly “private pond” (with a private access
fee) into a “public aquatic park” (with free navigation-related
access for the public). Id., at 176, 180. The Court held
there was a taking. But in doing so, it applied a Penn Cen-
tral, not a per se, analysis. The Court wrote that “[m]ore
than one factor contribute[d] to” the conclusion that the Gov-
ernment had gone “far beyond ordinary regulation or im-
provement.” 444 U. S., at 178. And it found there was a
taking.
If there is ambiguity in these cases, it concerns whether
the Court considered the occupation at issue to be temporary
(requiring Penn Central’s “too far” analysis) or permanent
(automatically requiring compensation). Nothing in them
suggests the majority’s view, namely, that compensation is
automatically required for a temporary right of access. Nor
does anything in them support the distinction that the ma-
jority gleans between “trespass” and “takings.” See ante,
at 159–160; see alsoinfra, at 176.
The majority also refers toNollanas support for its claim
that the “fact that a right to take access is exercised only
from time to time does not make it any less a physical tak-
ing.”Ante, at 154. True. Here, however, unlike inNol-
lan,the right taken is not a right to have access to the prop-
erty at any time (which access different persons “exercis[e]
. . . from time to time”). Rather here we have a right that
does not allow access at any time. It allows access only
from “time to time.” And that makes all the difference. A

Page Proof Pending Publication
174 CED
AR POINT NURSERY v. HASSID
Breyer, J., dissenting
right to enter my woods whenever you wish is a right to use
that proper
ty permanently, even if you exercise that right
only on occasion. A right to enter my woods only on certain
occasions is not a right to use the woods permanently. In
the first case one might reasonably use the term per se tak-
ing. It is as if my woods are yours. In the second case it
is a taking only if the regulation allowing it goes “too far,”
considering the factors we have laid out in Penn Central.
That is what our cases say.
Finally, the majority says that Nollan would have come
out the same way had it involved, similar to the regulation
here, access short of 365 days a year. See ante, at 154.
Perhaps so. But, if so, that likely would be because the
Court would have viewed the access as an “easement,” and
therefore an appropriation. See Nollan, 483 U. S., at 828.
Or, perhaps, the Court would have viewed the regulation as
going “too far.” I can assume, purely for argument’s sake,
that that is so. But the law is clear: A regulation that pro-
vides temporary, not permanent, access to a landowner’s
property, and that does not amount to a taking of a tradi-
tional property interest, is not a per se taking. That is, it
does not automatically require compensation. Rather, a
court must consider whether it goes “too far.”
C
The persistence of the permanent/temporary distinction
that I have described is not surprising. That distinc-
tion serves an important purpose. We live together in com-
munities. (Approximately 80% of Americans live in urban
areas. U. S. Census Bureau, Urban Area Facts (Mar. 30,
2021), https://www.census.gov/programs-surveys/geography/
guidance/geo-areas/urban-rural/ua-facts.html.) Modern life
in these communities requires different kinds of regulation.
Some, perhaps many, forms of regulation require access to
private property (for government officials or others) for dif-
ferent reasons and for varying periods of time. Most such

Page Proof Pending Publication
175Cite
as: 594 U. S. 139 (2021)
Breyer, J., dissenting
temporary-entry regulations do not go “too far.” And it is
imprac
tical to compensate every property owner for any
brief use of their land. As we have frequently said, “[g]ov-
ernment hardly could go on if to some extent values incident
to property could not be diminished without paying for every
such change in the general law.” Pennsylvania Coal Co.,
260 U. S., at 413; see also, e. g., Murr v. Wisconsin, 582 U. S.
383, 394 (2017) (same); Lingle, 544 U. S., at 538 (same); Tahoe-
Sierra Preservation Council, Inc.v.Tahoe Regional Plan-
ning Agency, 535 U. S. 302, 335 (2002) (same);Dolanv.City
of Tigard, 512 U. S. 374, 384–385 (1994) (same);Lucasv.
South Carolina Coastal Council, 505 U. S. 1003, 1018 (1992)
(same);Andrusv.Allard, 444 U. S. 51, 65 (1979) (same);Penn
Central, 438 U. S, at 124 (same). Thus, the law has not, and
should not, convert all temporary-access-permitting regula-
tions intoper setakings automatically requiring compensa-
tion. See,e. g.,Hodelv.Irving, 481 U. S. 704, 713 (1987)
(“This Court has held that the Government has considerable
latitude in regulating property rights in ways that may ad-
versely affect the owners”).
Consider the large numbers of ordinary regulations in a
host of different fields that, for a variety of purposes, permit
temporary entry onto (or an “invasion of”) a property own-
er’s land. They include activities ranging from examination
of food products to inspections for compliance with preschool
licensing requirements. See,e. g., 29 U. S. C. § 657(a) (au-
thorizing inspections and investigations of “any . . . work-
place or environment where work is performed” during “reg-
ular working hours and at other reasonable times”); 21
U. S. C. § 606(a) (authorizing “examination and inspection of
all meat food products . . . at all times, by day or night”); 42
U. S. C. § 5413(b) (authorizing inspections anywhere “manu-
factured homes are manufactured, stored, or held for sale”
at “reasonable times and without advance notice”); Miss.
Code Ann. § 49–27–63 (2012) (authorizing inspections of
“coastal wetlands” “from time to time”); Mich. Comp. Laws

Page Proof Pending Publication
176 CED
AR POINT NURSERY v. HASSID
Breyer, J., dissenting
§ 208.1435(5) (2010) (authorizing inspections of any “historic
resource” “at
any time during the rehabilitation process”);
Mont. Code Ann. § 81–22–304 (2019) (granting a “right of
entry . . . [into] any premises where dairy products . . . are
produced, manufactured, [or] sold” “during normal business
hours”); Neb. Rev. Stat. § 43–1303(5) (2016) (authorizing visi-
tation of “foster care facilities in order to ascertain whether
the individual physical, psychological, and sociological needs
of each foster child are being met”); Va. Code Ann. § 22.1–
289.032(C)(8) (Cum. Supp. 2020) (authorizing “annual inspec-
tion” of “preschool programs of accredited private schools”);
Cincinnati, Ohio, Municipal Code § 603–1 (2021) (authorizing
entry “at any time” for any place in which “animals are
slaughtered”); Dallas, Tex., Code of Ordinance § 33–5(a)
(2021) (authorizing inspection of “assisted living facilit[ies]”
“at reasonable times”); 6 N. Y . Rules & Regs. § 360.7 (Supp.
2020) (authorizing inspection of solid waste management
facilities “at all reasonable times, locations, whether an-
nounced or unannounced”); see also Boise Cascade Corp. v.
United States, 296 F. 3d 1339, 1352 (CA Fed. 2002) (affirming
an injunction requiring property owner to allow Government
agents to enter its property to conduct owl surveys); Brief
for Respondents 43–44, 46 (collecting similar regulations);
App. to Brief for Local Governments as Amici Curiae 1–13
(same); Brief for Virginia et al. as Amici Curiae 3–6 (same).
The majority tries to deal with the adverse impact of
treating these, and other, temporary invasions as if they
were per se physical takings by creating a series of excep-
tions from its per se rule. It says: (1) “Isolated physical in-
vasions, not undertaken pursuant to a granted right of ac-
cess, are properly assessed as individual torts rather than
appropriations of a property right.” Ante, at 159. It also
would except from its per se rule (2) government access that
is “consistent with longstanding background restrictions on
property rights,” including “traditional common law privi-

Page Proof Pending Publication
177Cite
as: 594 U. S. 139 (2021)
Breyer, J., dissenting
leges to access private property.” Ante, at 160. And it
adds that
(3) “the government may require property owners
to cede a right of access as a condition of receiving certain
benefits, without causing a taking.”Ante, at 161. How
well will this new system work? I suspect that the majority
has substituted a new, complex legal scheme for a compara-
tively simpler old one.
As to the first exception, what will count as “isolated”?
How is an “isolated physical invasion” different from a “tem-
porary” invasion, sufficient under present law to invokePenn
Central? And where should one draw the line between
trespass and takings? Imagine a school bus that stops to
allow public school children to picnic on private land. Do
three stops a year place the stops outside the exception?
One stop every week? Buses from one school? From every
school? Under current law a court would know what ques-
tion to ask. The stops are temporary; no one assumes a per-
manent right to stop; thus the court will ask whether the
school district has gone “too far.” Under the majority’s ap-
proach, the court must answer a new question (apparently
about what counts as “isolated”).
As to the second exception, a court must focus on “tradi-
tional common law privileges to access private property.”
Just what are they? We have said before that the govern-
ment can, without paying compensation, impose a limitation
on land that “inhere[s] in the title itself, in the restrictions
that background principles of the State’s law of property and
nuisance already place upon land ownership.”Lucas, 505
U. S., at 1029. But we defined a very narrow set of such
background principles. Seeibid., and n. 16 (abatement of
nuisances and cases of “ ‘actual necessity’ ” or “to forestall
other grave threats to the lives and property of others”).
To these the majority adds “public or private necessity,” the
enforcement of criminal law “under certain circumstances,”
and reasonable searches.Ante, at 161. Do only those excep-

Page Proof Pending Publication
178 CED
AR POINT NURSERY v. HASSID
Breyer, J., dissenting
tions that existed in, say, 1789 count? Should courts apply
those pr
ivileges as they existed at that time, when there
were no union organizers? Or do we bring some exceptions
(but not others) up to date, e. g., a necessity exception for
preserving animal habitats?
As to the third, what is the scope of the phrase “certain
benefits”? Does it include the benefit of being able to sell
meat labeled “inspected” in interstate commerce? But see
Horne, 576 U. S., at 366 (concluding that “[s]elling produce in
interstate commerce” is “not a special governmental bene-
fit”). What about the benefit of having electricity? Of sew-
age collection? Of internet accessibility? Myriad regula-
tory schemes based on just these sorts of benefits depend
upon intermittent, temporary government entry onto pri-
vate property.
Labor peace (brought about through union organizing) is
one such benefit, at least in the view of elected representa-
tives. They wrote laws that led to rules governing the or-
ganizing of agricultural workers. Many of them may well
have believed that union organizing brings with it “benefits,”
including community health and educational benefits, higher
standards of living, and (as I just said) labor peace. See,
e. g.,1975 Cal. Stats. ch. 1, § 1 (stating that the purpose of
the Agricultural Labor Relations Act was to “ensure peace
in the agricultural fields by guaranteeing justice for all ag-
ricultural workers and stability in labor relations”). A land-
owner, of course, may deny the existence of these benefits,
but a landowner might do the same were a regulatory stat-
ute to permit brief access to verify proper preservation of
wetlands or the habitat enjoyed by an endangered species
or, for that matter, the safety of inspected meat. So, if a
regulation authorizing temporary access for purposes of or-
ganizing agricultural workers falls outside of the Court’s ex-
ceptions and is aper setaking,then to what other forms of
regulation does the Court’sper seconclusion also apply?

Page Proof Pending Publication
179Cite
as: 594 U. S. 139 (2021)
Breyer, J., dissenting
II
Fina
lly, I touch briefly on remedies, which the majority
does not address. The Takings Clause prohibits the Gov-
ernment from taking private property for public use without
“just compensation.” U. S. Const., Amdt. 5. But the em-
ployers do not seek compensation. They seek only injunc-
tive and declaratory relief. Indeed, they did not allege any
damages. See App. to Pet. for Cert. G–16 to G–17. On re-
mand, California should have the choice of foreclosing injunc-
tive relief by providing compensation. See,e. g.,Knickv.
Township of Scott, 588 U. S. –––, ––– (2019) (“As long as just
compensation remedies are available—as they have been for
nearly 150 years—injunctive relief will be foreclosed”).
* * *
I recognize that the Court’s prior cases in this area are
not easy to apply. Moreover, words such as “temporary,”
“permanent,” or “too far” do not define themselves. But I
do not believe that the Court has made matters clearer or
better. Rather than adopt a new broad rule and indetermi-
nate exceptions, I would stick with the approach that I be-
lieve the Court’s case law sets forth. “Better the devil we
know . . . .” A right of access such as the right at issue
here, a nonpermanent right, is not automatically a “taking.”
It is a regulation that falls within the scope ofPenn Central.
Because the Court takes a different view, I respectfully
dissent.

Retrieval chunks

• #1

  Page Proof Pending Publication PRELIMINARY PRINT Volume 594 U. S. Part 1 Pages 139–179 OFFICIAL REPORTS OF THE SUPREME COURT June 23, 2021 REBECCA A. WOMELDORF reporter of decisions NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to noti…

• #2

  use, the Takings Clause obligates the government to provide the owner with just compensation.Tahoe-Sierra Preservation Council, Inc.v. Tahoe Regional Planning Agency, 535 U. S. 302, 321. The Court as- sesses such physical takings using aper serule: The government must pay for what it takes.Id., at 322. A differen…

• #3

  of compensation due. SeeUnited Statesv.Dow, 357 U. S. 17, 26. To be sure, the Court inLorettov.Teleprompter Manhattan CATV Corp., 458 U. S. 419, discussed the heightened concerns associated with “[t]he permanence and absolute exclusivity of a physical occupation” in con- trast to “temporary limitations on the righ…

• #4

  are properly assessed as individual torts rather than appropriations of a property right. Second, many government-authorized physical inva- sions will not amount to takings because they are consistent with long- standing background restrictions on property rights, including tradi- tional common law privileges to a…

• #5

  South Carolina, andKen Paxtonof Texas; for Americans for Prosperity Foundation byCynthia Fleming CrawfordandMichael Pepson; for the Buckeye Institute byThomas R. McCarthyandRobert Alt; for the Cato Institute et al. byIlya ShapiroandKaren R. Harned; for the Chamber of Commerce of the United States of America byStef…

• #6

  nia Rural Legal Assistance, Inc., et al. by Verónica Meléndez and Cynthia L. Rice; for the Constitutional Accountability Center by Elizabeth B. Wydra and Brianne J. Gorod; for Legal Historians by Katharine M. Mapes; for Local Governments by Jonathan B. Miller, Jessica M. Scheller, Peter S. Holmes, Erica R. Frankli…

• #7

  may “take access” to an agricultural employer’s property for up to four 30-day periods in one calendar year. §§ 20900(e)(1)(A), (B). In order to take access, a labor orga- nization must file a written notice with the Board and serve a copy on the employer. § 20900(e)(1)(B). Two organizers per work crew (plus one a…

• #8

  their property again in the near future, the growers filed suit in Federal District Court against several Board members in their official capacity. The growers argued that the access regulation effected an unconstitutionalper sephysical taking under the Fifth and Fourteenth Amendments by appropriat- ing without com…

• #9

  never allowed labor organizers to enter an employer’s prop- erty for substantial periods of time when its employees lived off premises.Id., at 536; seeLechmere, Inc.v.NLRB, 502 U. S. 527, 540–541 (1992);NLRBv.Babcock & Wilcox Co., 351 U. S. 105, 113 (1956). As he saw it, the regulation con- stituted a physical oc…

• #10

  sion of property without acquiring title to it. SeeUnited Page Proof Pending Publication 148 CED AR POINT NURSERY v. HASSID Opinion of the Court States v. Pewee Coal Co., 341 U. S. 114, 115–117 (1951) (plu- ral ity opinion). And the government likewise effects a physical taking when it occupies property—say, b…

• #11

  appropriates property is no less a physical taking because it arises from a regulation. That explains why we held that an administrative reserve requirement compelling raisin growers to physically set aside a percentage of their crop for the government constituted a physical rather than a regula- tory taking. Hor…

• #12

  Given the central importance to property ownership of the right to exclude, it comes as little surprise that the Court has long treated government-authorized physical invasions as takings requiring just compensation. The Court has often described the property interest taken as a servitude or an easement. For exa…

• #13

  erties. 458 U. S., at 423. Loretto alleged that the installa- tion of a ½-inch diameter cable and two 1½-cubic-foot boxes on her roof caused a taking.Id., at 424. We agreed, stating that where government action results in a “permanent physi- cal occupation of property, our cases uniformly have found a taking to t…

• #14

  complaint states a claim for an uncompensated taking in violation of the Fifth and Fourteenth Amendments. C The Ninth Circuit saw matters differently, as do the Board and the dissent. In the decision below, the Ninth Circuit took the view that the access regulation did not qualify as a per setaking because, alth…

• #15

  himself permanently upon the premises.” 483 U. S., at 832. Next, we have recognized that physical invasions consti- tute takings even if they are intermittent as opposed to con- tinuous.Causbyheld that overflights of private property effected a taking, even though they occurred on only 4% of takeoffs and 7% of lan…

• #16

  taking of a property interest but rather . . . a mere restric- tion on its use, is to use words in a manner that deprives them of all their ordinary meaning.”Nollan, 483 U. S., at 831 (citation and internal quotation marks omitted). Page Proof Pending Publication 155Cite as: 594 U. S. 139 (2021) Opinion of the …

• #17

  Page Proof Pending Publication 156 CED AR POINT NURSERY v. HASSID Opinion of the Court Dow, 357 U. S., at 21; see also United States v. Clarke, 445 U. S. 253, 256–257, and n. 3 (1980). In the latter situation, the government’s intrusion does not vest it with a property interest recognized by state law, such as…

• #18

  ulations granting a right to invade property closed to the public. SeeHorne, 576 U. S., at 364 (distinguishingPrune- Yardas involving “an already publicly accessible” business); Nollan, 483 U. S., at 832, n. 1 (same). The Board also relies on our decision inNLRBv.Bab- cock & Wilcox Co. But that reliance is mispla…

• #19

  173. According to the dissent, this kind of latitude toward temporary invasions is a practical necessity for governing in our complex modern world. Seepost, at 174–175. With respect, our own understanding of the role of prop- erty rights in our constitutional order is markedly different. In “ordinary English” “ap…

• #20

  concludes with “Better the devil we know . . . ,”post, at 179, but its objections, to borrow from then-Justice Rehnquist’s invocation of Wordsworth, “bear[ ] the sound of ‘Old, un- happy, far-off things, and battles long ago,’ ”Kaiser Aetna, 444 U. S., at 177. III The Board, seconded by the dissent, warns that t…

• #21

  Our approach inArkansas Game and Fish Commissionre- flects nothing more than an application of the traditional trespass-versus-takings distinction to the unique considera- tions that accompany temporary flooding. Second, many government-authorized physical invasions will not amount to takings because they are consi…

• #22

  the proposed use of the property. Dolan, 512 U. S., at 386, 391; see also Koontz v. St. Johns River Water Management Dist., 570 U. S. 595, 599 (2013). Under this framework, government health and safety in- spection regimes will generally not constitute takings. See, e. g., Ruckelshaus v. Monsanto Co., 467 U. S. 9…

• #23

  In Babcock, the National Labor Relations Board argued that the National Labor Relations Act afforded union orga- nizers a right to enter company property to communicate Page Proof Pending Publication 163Cite as: 594 U. S. 139 (2021) Kavanaugh, J., dissenting with employees. Several employers responded that the …

• #24

  that “property rights are fundamental.” Id., at 429, n. 4, 546 P . 2d, at 712, n. 4. And he concluded that the California union access regulation “violates the rule” ofBabcockand thus “violates the constitutional provisions protecting pri- vate property.” 16 Cal. 3d, at 431, 546 P. 2d, at 713. In my view, Justic…

• #25

  others. At the same time, our prior cases make clear that the regulation before us allows only a temporary invasion of a landowner’s property and that this kind of temporary invasion amounts to a taking only if it goes “too far.” See, e. g., Lorettov.Teleprompter Manhattan CATV Corp., 458 U. S. 419, 434 (1982). I…

• #26

  It is embedded in a set of related detailed regulations that describe and limit the access at issue. In addition to the hours of access just mentioned, it provides that union repre- sentatives can enter the property only “for the purpose of meeting and talking with employees and soliciting their sup- port”; they …

• #27

  The majority concludes that the regulation nonetheless amounts to a physical taking of property because, the major- ity says, it “appropriates” a “right to invade” or a “right to exclude” others. See ante, at 149, 152, 154, 156, 157, 158, 162 (right to invade); ante, at 149, 150, 153, 155, 158 (right to ex- clude…

• #28

  facilities on their property. 458 U. S., at 421. We held that the installation amounted to a permanent physical occupa- tion of the property and hence to a per se taking. See id., at 441 (“affirm[ing] the traditional rule that a permanent physical occupation of property is a taking”); see also id., at 427 (tracing…

• #29

  serious form of invasion of an owner’s property interests.” Id., at 435. Now considerPruneYard Shopping Centerv.Robins, 447 U. S. 74 (1980). We there considered the status of a state constitutional requirement that a privately owned shopping center permit other individuals to enter upon, and to use, the property…

• #30

  Unlike the regulation inLoretto, it does not place a “fixed structure on land or real property.” 458 U. S., at 437. The Page Proof Pending Publication 171Cite as: 594 U. S. 139 (2021) Breyer, J., dissenting employers are not “forever denie[d]” “any power to control the use” of any particular portion of their pr…

• #31

  a taking is not inevitably found just because the interference with property can be characterized as a physical invasion by the government, or, in other words, when it affects the right to exclude. The majority refers to other cases. But those cases do not help its cause. That is because the Court in those cases …

• #32

  In Kaiser Aetna v. United States, 444 U. S. 164, the Court considered whether the Government had taken property by converting a formerly “private pond” (with a private access fee) into a “public aquatic park” (with free navigation-related access for the public). Id., at 176, 180. The Court held there was a taking…

• #33

  Perhaps so. But, if so, that likely would be because the Court would have viewed the access as an “easement,” and therefore an appropriation. See Nollan, 483 U. S., at 828. Or, perhaps, the Court would have viewed the regulation as going “too far.” I can assume, purely for argument’s sake, that that is so. But th…

• #34

  latitude in regulating property rights in ways that may ad- versely affect the owners”). Consider the large numbers of ordinary regulations in a host of different fields that, for a variety of purposes, permit temporary entry onto (or an “invasion of”) a property own- er’s land. They include activities ranging fro…

• #35

  agents to enter its property to conduct owl surveys); Brief for Respondents 43–44, 46 (collecting similar regulations); App. to Brief for Local Governments as Amici Curiae 1–13 (same); Brief for Virginia et al. as Amici Curiae 3–6 (same). The majority tries to deal with the adverse impact of treating these, and o…

• #36

  nuisance already place upon land ownership.”Lucas, 505 U. S., at 1029. But we defined a very narrow set of such background principles. Seeibid., and n. 16 (abatement of nuisances and cases of “ ‘actual necessity’ ” or “to forestall other grave threats to the lives and property of others”). To these the majority ad…

• #37

  ceptions and is aper setaking,then to what other forms of regulation does the Court’sper seconclusion also apply? Page Proof Pending Publication 179Cite as: 594 U. S. 139 (2021) Breyer, J., dissenting II Fina lly, I touch briefly on remedies, which the majority does not address. The Takings Clause prohibits th…