Cedar Point Nursery; Fowler Packing Company, Inc., Plaintiffs-Appellants,
Genevieve Shiroma; Cathryn Rivera-Hernandez; Santiago Avila-Gomez, Esquire; Isadore Hall III, Defendants-Appellees.
and Submitted November 17, 2017 San Francisco, California
from the United States District Court for the Eastern
District of California Lawrence J. O'Neill, Chief
District Judge, Presiding D.C. No. 1:16-cv-00185-LJO-BAM
Wencong Fa (argued), Jeremy Talcott, Joshua P. Thompson, and
Damien M. Schiff, Pacific Legal Foundation, Sacramento,
California; Ian B. Wieland and Howard A. Sagaser, Sagaser,
Watkins & Wieland PC; Fresno, California, for
Matthew Wise (argued), Deputy Attorney General; Mark R.
Beckington, Supervising Deputy Attorney General; Douglass J.
Woods, Senior Assistant Attorney General; Xavier Becerra,
Attorney General; Office of the Attorney General, Sacramento,
California; for Defendants-Appellees.
Garrison and Ilya Shapiro, Cato Institute, Washington, D.C.,
for Amicus Curiae Cato Institute.
Cannon and Steven J. Lechner, Mountain States Legal
Foundation, Lakewood, Colorado, for Amicus Curiae Mountain
States Legal Foundation.
N. McDonough and Carl G. Borden, California Farm Bureau
Federation, for Amicus Curiae California Farm Bureau
Martínez, Martínez Aguilasocho & Lynch
APLC, Bakersfield, California; Jacob C. Goldberg and Henry M.
Willis, Schwartz Steinsapir Dohrmann & Sommers LLP, Los
Angeles, California; for Amici Curiae United Farm Workers of
America and United Food and Commercial Workers Union, Local
Before: Edward Leavy, William A. Fletcher, and Richard A.
Paez, Circuit Judges.
Law / Takings / Seizure
panel affirmed the district court's dismissal of an
appeal by Growers seeking declaratory and injunctive relief
against members of the California Agricultural Labor
Relations Board who promulgated a regulation allowing union
organizers access to agricultural employees at employer
worksites under specific circumstances.
Growers alleged that the access regulation, as applied to
them, was unconstitutional because it was a per se taking in
violation of the Fifth Amendment and was an unlawful seizure
of their property in violation of the Fourth Amendment.
panel rejected the Growers' allegation that the access
regulation, as applied to them, effected a Fifth Amendment
taking by creating an easement that allowed union organizers
to enter their property "without consent or
compensation." The panel held that the Growers did not
suffer a permanent physical invasion that would constitute a
per se taking. Although the access regulation did not have a
contemplated end-date, it did not meet Nollan v.
California Coastal Commission, 483 U.S. 825 (1987)'s
definition of a permanent physical occupation where the
regulation significantly limited organizers' access to
the Growers' property. The panel further held that the
Growers did not suffer a permanent physical invasion that
would constitute a per se taking because the sole property
right affected by the regulation was the right to exclude.
panel held that the Growers did not plausibly allege that the
access regulation effected a "seizure" within the
meaning of the Fourth Amendment. Specifically, the panel held
that the Growers failed to cite any directly applicable
authority supporting their contention that the access
regulation was a meaningful interference with their
possessory interests in their property. The panel further
held that the Growers did not allege facts showing that the
character of their property was somehow "profoundly
different" because of the access regulation.
Leavy dissented because he would hold that the alleged access
regulation was an unconstitutional taking, and the district
court erred in granting the motion to dismiss. Judge Leavy
wrote that the Growers sufficiently alleged that no employees
lived on the Growers' properties and the employees were
not beyond the reach of the union's message; and he had
found no Supreme Court case holding that non-employee labor
organizers may enter an employer's nonpublic, private
property for substantial periods of time, when none of the
employees lived on the employer's premises.
1975, the California legislature enacted the Agricultural
Labor Relations Act ("ALRA") to "ensure peace
in the agricultural fields by guaranteeing justice for all
agricultural workers and stability in labor
relations."Among the ALRA's enactments was the
creation of the Agricultural Labor Relations Board ("the
Board"). Shortly after the ALRA's effective date,
the Board promulgated a regulation allowing union organizers
access to agricultural employees at employer worksites under
specific circumstances. In this case, we are asked to decide
whether the access regulation is unconstitutional as applied
to Plaintiffs, Cedar Point Nursery and Fowler Packing Company
(collectively, "the Growers").
Growers appeal the district court's dismissal of their
complaint seeking declaratory and injunctive relief against
members of the Board. The Growers contend that the access
regulation, as applied to them, is unconstitutional in two
ways. First, the Growers allege that the regulation amounts
to a per se taking in violation of the Fifth Amendment
because it is a permanent physical invasion of their property
without just compensation. Second, the Growers allege that
the regulation effects an unlawful seizure of their property
in violation of the Fourth Amendment. We conclude the access
regulation does not violate either provision, and affirm.
ALRA authorized the Board to make "such rules and
regulations as may be necessary to carry out" the ALRA.
Cal. Lab. Code §§ 1141, 1144. Pursuant to this
authority, the Board promulgated an emergency regulation
shortly after the ALRA's effective date that allowed
union organizers access to employees on their employer's
property under limited circumstances. The Board later
certified that it had subjected the regulation to notice and
comment, allowing the regulation to remain in effect until
repealed or amended. Agric. Labor Relations Bd. v. Superior
Court (Pandol & Sons), 546 P.2d 687, 692 n.3 (Cal.
access regulation was promulgated in recognition that
[t]he United States Supreme Court has found that
organizational rights are not viable in a vacuum. Their
effectiveness depends in some measure on the ability of
employees to learn the advantages and disadvantages of
organization from others. When alternative channels of
effective communication are not available to a union,
organizational rights must include a limited right to
approach employees on the property of the employer. Under
such circumstances, both statutory and constitutional
principles require that a reasonable and just accommodation
be made between the right of unions to access and the
legitimate property and business interests of the employer .
. . . Generally, unions seeking to organize agricultural
employees do not have available alternative channels of
effective communication. Alternative channels of effective
communication which have been found adequate in industrial
settings do not exist or are insufficient in the context of
Cal. Code Regs. tit. 8, § 20900(b)-(c).
the Board determined that adopting a universally applicable
rule for access-as opposed to case-by-case adjudications or
the "adoption of an overly general rule"- would
best serve the "legislatively declared purpose of
bringing certainty and a sense of fair play to a presently
unstable and potentially volatile condition in the
agricultural fields of California." Cal. Code Regs. tit.
8, § 20900(d). The access regulation was intended to
"provide clarity and predictability to all
furtherance of these goals, the access regulation declared
that the enumerated rights of agricultural employees under
the ALRA include "the right of access by union
organizers to the premises of an agricultural employer for
the purpose of meeting and talking with employees and
soliciting their support." Cal. Code Regs. tit. 8,
§ 20900(e). This right of access is not unlimited.
Rather, the access regulation imposes a number of
restrictions on access relating to time, place, number of
organizers, purpose, and conduct. Id. These
restrictions include, among others:
[A]n agricultural employer's property shall be available
to any one labor organization for no more than four (4)
thirty-day periods in any calendar year. §
Each thirty-day period shall commence when the labor
organization files in the appropriate regional office two (2)
copies of a written notice of intention to take access onto
the described property of an agricultural employer, together
with proof of service of a copy of ...