March 22, 2017

Briefing complete in challenge to access regulation

By Wen Fa Attorney

We recently filed our Ninth Circuit reply brief in Cedar Point Nursery v. Gould. The case involves a challenge to the Agricultural Labor Relations Board’s access regulation, which allows union activists to invade private property for three hours a day and 120 days per year.

In its opposition brief, the ALRB argued that the access regulation survives constitutional scrutiny because it contains certain time, place, and manner restrictions (e.g. union activist could not access private property for more than three hours a day). The board’s argument is unpersuasive. Government action that takes private property for the benefit of third-party invaders categorically triggers the protections of the Takings Clause. Time, place, and manner restrictions may impact the scope of “just compensation,” but they do not relieve the government of its duty to compensate the property owner in the first place.

PLF’s Supreme Court victory in Nollan v. California Coastal Commission is illustrative. There, the Court held that the government violates the Takings Clause when it invites beachgoers to cut across private property on their way to the beach. Of course, many beaches are open only at certain times. Yet the sporadic nature of the physical intrusion in Nollan made no difference to the analysis. By the same token, the fact that union activists can invade private property only at certain times does not diminish our clients’ constitutional rights. PLF hopes that the Ninth Circuit will hear oral argument in the case in the next few months, and vindicate our clients’ constitutional rights.

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Cedar Point Nursery v. Gould

PLF represents California farming businesses that employ around 3,000 Californians and produce millions of dollars for California’s economy in the form of oranges, table grapes, and strawberry plants. A state Agricultural Labor Relations Board regulation – the Union Access Rule – allows union organizers to go on private land to solicit support for unionization. In 2015, union organizers entered and walked across our clients’ property during harvest time, promoting the union with bullhorns. Some workers, scared and intimidated, left the property. PLF sued, arguing that this disruptive regulation effectively takes the farmers’ property in violation of the Fifth Amendment and also violates the Fourth Amendment prohibition on unreasonable seizures.

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