Supreme Court to review lawsuit over on-farm ‘invasions’ by unions

Source:-https://www.capitalpress.com

Bullhorn-wielding union organizers entering a farm before dawn may seem like a “physical invasion” to many growers.

But as long as such incursions are limited to three times per day and 120 days per year, they’re sanctioned under California farm labor regulations.

Whether California’s regulatory scheme amounts to an unpaid government easement across private property — an unconstitutional taking without just compensation — will now be decided by the U.S. Supreme Court.

Last year, the 9th U.S. Circuit Court of Appeals dismissed a lawsuit filed by Cedar Point Nursery, which complained that an unannounced pre-dawn visit from the United Farm Workers union disrupted its strawberry operation and violated its private property rights.

The 9th Circuit reasoned that Cedar Point Nursery and another farm “have not suffered a permanent physical invasion” from such union activities because California’s regulation “does not allow random members of the public to unpredictably traverse their property 24 hours a day, 365 days a year.”

California’s farm access regulation also only affects a farm’s “right to exclude others” but doesn’t affect the rest of its “bundle of rights,” such as possessing, using or selling property, according to the 9th Circuit.

The nation’s highest court has now agreed to review the 9th Circuit’s ruling, which property rights advocates believe will have broad implications for landowners beyond farm employment law.

Based on the 9th Circuit’s rationale, governments can effectively create easements across private land for members of the public or others, as long as the access is restricted to certain days and times, said Damien Schiff, senior attorney with the Pacific Legal Foundation.

“The rationale for the access doesn’t really matter,” Schiff said. “As long as it’s not a complete wipe-out of your right to exclude people, you’re not entitled to compensation.”

In Oregon and Washington, union organizers aren’t allowed to enter farms as they are in California, said Tim Bernasek, agricultural attorney with the Dunn Carney law firm. “Farmers can prohibit organizers on the farm and during working hours just like they can exclude anyone else.”

However, the case before the Supreme Court is significant for the overall issue of property rights infringement, since third parties were given fairly expansive parameters to access private land, he said.

We don’t know when they’re coming, so it could be anytime,” which the farm plaintiffs see as infringement, Bernasek said. “The other side says, ‘No, it isn’t, because it’s not for a significant amount of time.’”

While California’s farm access regulation is unique to that state, the 9th Circuit’s approach to private property would set a “very dangerous precedent” if allowed to stand, Schiff said.

Other governments could see it as an invitation to impose similar burdens on private properties for any number of reasons, he said.

“It gives the government basically … all it wants without paying just compensation,” Schiff said. “It’s a risk of the precedent being expanded beyond agricultural labor relations.”

California’s government urged the Supreme Court not to review the 9th Circuit’s lawsuit, arguing the ruling doesn’t violate the highest court’s precedents or create a “circuit split” of conflicting decisions among appellate courts.

The state’s Department of Justice argued there’s “no indication that the access regulation poses a significant problem for California farmers,” since it’s only used by unions on a fraction of the state’s farms.

“Petitioners speculate that these brief visits might ‘disrupt production,’ but petitioners have not actually alleged any negative economic impact on them (or anyone else) resulting from the regulation,” the agency said.