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Cedar Point Nursery v. Shiroma

United States Court of Appeals, Ninth Circuit

May 8, 2019

Cedar Point Nursery; Fowler Packing Company, Inc., Plaintiffs-Appellants,
v.
Genevieve Shiroma; Cathryn Rivera-Hernandez; Santiago Avila-Gomez, Esquire; Isadore Hall III, Defendants-Appellees.

          Argued and Submitted November 17, 2017 San Francisco, California

          Appeal 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 Plaintiffs-Appellants.

          R. 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.

          Frank Garrison and Ilya Shapiro, Cato Institute, Washington, D.C., for Amicus Curiae Cato Institute.

          Gina Cannon and Steven J. Lechner, Mountain States Legal Foundation, Lakewood, Colorado, for Amicus Curiae Mountain States Legal Foundation.

          Nancy N. McDonough and Carl G. Borden, California Farm Bureau Federation, for Amicus Curiae California Farm Bureau Federation.

          Mario 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 770.

          Before: Edward Leavy, William A. Fletcher, and Richard A. Paez, Circuit Judges.

         SUMMARY[*]

         Constitutional Law / Takings / Seizure

         The 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.

         The 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.

         The 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.

         The 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.

         Judge 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.

          OPINION

          PAEZ, Circuit Judge

         In 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."[1]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").

         The 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.

         BACKGROUND

         The Access Regulation

         The 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.[2] Agric. Labor Relations Bd. v. Superior Court (Pandol & Sons), 546 P.2d 687, 692 n.3 (Cal. 1976).

         The 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 agricultural labor.

Cal. Code Regs. tit. 8, § 20900(b)-(c).

         Thus, 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 parties." Id.

         In 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. § 20900(e)(1)(A).
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 ...

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