argument in the california property rights law and union organizing case. state agriculture regulations require businesses to give unions access to worksites for purposes of organizing talking to employees. in 2015 the united farm workers tried unsuccessfully to gain access to some businesses. cedar point nursery and their union filed separate complaints with california's agricultural labor relations board arguing the regulation amounts to an unjust and uncompensated taking a property and a violation of the fifth amendment takings clause. lower courts ruled against the businesses. the justices have until the end of june to hand down a decision. >> will hear argument this morning in case 20-107, cedar point nursery versus hassid. mr. thompson. >> thank you, mr. chief justice,

and may it please the court. an access easement that takes the right toe enter, occupy, ad use another's private property affects a person physical taking under the fifth amendment. any time limitations placed on access go towards the just compensation due, not whether the taking has occurred. the access regulation at issue in this case authorizes an easement on the property of petitioners for the benefit of union organizers. under the terms of the access regulation, organizers may occupy the businesses property for three hours each day, 120 days each year. this court should hold that the taking of this easement violates of the fifth amendment because it effects of physical taking without compensation and the court should so hold for two reasons. first, the appropriation of the real property interest triggers a categorical duty to compensate. the access regulation authorizes the taking of a real property interest in form of a continual right to occupyte and use petitioners property. and second, at a more

fundamental level, the access regulation denies petitioners the right to exclude union organizers from the property. such an infringement on the most fundamental property right maritz percy treatment. the ninth circuit took a different tactic it demoted the right to exclude to just another stick int the bundle and would give percy treatment only to those rare easements that authorize 24/7 occupation.on not even the board supports that extreme rule. the board offers no basis, much less a principled one, which did establish axis easements that merit percy treatment from those that don't. if the government wants to take an access easement over private property it hasto to pay for it. failure to pay just compensation violate the takings clause. i welcome the courts questions. >> council, on page six of the chamber of commerce's brief it says that requiring a sacrifice of the right to exclude third parties during the contents of reasonable government inspections that benefit

property owners will likely satisfy the doctrine of unconstitutional conditions. i wonder if you agree with that. >> mr. chief justice, we would say that reasonable government inspections are a background principle of property law that do not affect or property right or your right to exclude. i do think the government can exact a constitutional condition on some relinquishment of the right to exclude. but routine government inspections and administrative searches are justified as a government power that they had at common law. >> so it has nothing to do with whether it benefits the property owners? >> not under our formulation, mr. chief justice. as i read this court's cases, since the government had the authority at common law to undertake reasonable searches, the property owner does not have the right to exclude the government when it undertakes that power. the fourth amendment presents a

constitutional limit on the extent to which the government can search, but it does not affect one's property right when the government undertakes that power. >> why doesn't benefiting peaceful labor or promoting peaceful labor relations fall under the same category as safety inspections? in other words, it benefits the public interest to have limited access along those lines. >> mr. chief justice, because there was no right at common law to allow third-party union organizers into one's property. that is a right that when the government takes it has to pay .ompensation >> with her a lot of union organizers at common law? >> certainly not. i also don't think this could be justified as a constitutional condition because the right to enter into agriculture, the right to selfre strawberry plan, for example, is not a government benefit that the board can hold for ransom in exchange for our

fundamental property rights. >> how much compensation do you think is due because of the existence of this law? >> i don't know that question. that certainly not before the court. i think the impingement on the property rights here is significant, and if the board would like to pay for that it can certainly, there are measures the courts below can undertake determine the right compensation. >> thank you, counsel. justice thomas. >> thank you, mr. chief justice. counsel, the question presented here, your question presented, is whether the uncompensated appropriation involves the uncompensated appropriation of anen easement. was there a finding that this is an easement? >> no. no, justice thomas, there was no finding that this was an easement. i think that we use the term easement in the same way that

this court used the term servitude in portsmouth harbor and this court used the term easement and both kaiser aetna and cosby. what that means is it's over and above a mere trespass. the government is intended to take a property interest, and it's that taking of an easements interest that maritz per se treatment. >> does this have to be an interest or easement that is recognized under state law, or can it be something that, rather than under state law, is recognized under common law? >> justice>> thomas, i don't thk that whether this is a recognizable easement under state law, for example, whether it's transferable and alienable, matters. what matters is that the right to exclude has been denied in a way that is more than a series of near trespasses, as this court indicated in portsmouth harbor. if theve governments intent is o

fire a single shot was to appropriate that property interest, then compensation is due. >> but that takes you back to what the chief justice ask, how much compensation would bece due for this, something that is quite, it somehow occupies space between a new trespass and a temporary easement. >> justice thomas, we don't believe that the compensation here would be minimal. however, the court in loretto were told that even a minimal invasion of the right to exclude and even a minimal the ninth of the would merit compensation. of course the new york court of appeals in loretto founded one dollar compensation sufficient,, but this court nevertheless, held that it wasic a physical taking that merited per se treatment. >> you said to the chief justice thatf reasonable searches were okay. how would you define a reasonable search in your case?

what would that look like? >> justice thomas, in our case the government is not searching. it is authorizing third parties to come on to proselytize. >> what would be a visit that -- i misspoke. what would be a visit that would be sufficiently reasonable that it would not violate the fifth amendment takings clause? >> justice thomas, anytime theg government undertakes its power to search it would not be a taking.o it could be an unconstitutional search under this court's fourth amendment jurisprudence. but if it is an unconstitutional search, then by definition it cannot be a taking because the government doesn't have authority to undertake that action. >> thank you. >> justice breyer. >> well, a lot of what i read in this seemed to suggest that you think that the search here, or

the states action here was excessive, is that right? >> we do think that this violated our fundamental property right, justicevi breye. >> will you answer my question? do you a think it is excessive s a regulation? is it? >> justice breyer, i think the uncompensated taking of property interest is always excessive. .. are dozens and dozens and dozens of statutes which provide for example, what a brief tells us the mind -- mine safety and health act allows the secretary of labor to expect a coal mine at least four times a year, and i guess that they could have, say, some kind of authority to delegate that two private inspectors. those long list of statutes, are they all unconstitutional? >> no, because those are not

affecting your property rights. >> the property right and common-law. now-- ments i see, it's common-law. well, you know what they have that's surprising, i don't mean to sound facetious or sarcastic, but was trying to think of an examplement people have in 15 years their own private spaceship or their own electric cars or driverless cars and there's a law that says people can go in, the inspector at the gas station, if you keep your car without using it inside your property after 10 years, they want to inspector it, it might blow up. they had no spaceship for common-law, i'm trying to think of an example where it's the same eyed. they didn't have common-law. >> justice breyer, what matters is whether the government has the power to search common-law, not what they are searching. so if the government is using its authority to search, which is a power that the government

has to common-law, the property owner does not have the right to exclude them. >> the government can search whatever is reasonable, it can search it, but what it cannot do is-- is take a discrete property interest. >> i understand the word sacred, but that sounds like conclusion. they send someone out there as they are here, to talk to workers to find out what the conditions are, for example, can they do that? >> they're searching for conditions, whether they'd like to belong to a union. they can't do that. what's the difference? >> the power that the government is doing. if it's the power of common-law you do not have the right to exclude the government from undertaking that power. if it's not a power that the government includes, then you have the right to exclude and whether the government takes that right from you, something it could not do from

common-law, it has to compensate-- >> they're seechg searching to see if the electric car, is safe out on the highway. can they do that? >> they have the search, it's the searching power not what they're searching that matters. >> justice alito. >> looking to the california property law in determining that, in her judgment, there was a taking here of a property interest. is that the proper approach? do we look to how state law in 2021 defines property interest? >> justice alito, every taking's question is going to begin what is the property rights that the property owner possesses. after that undertaking, this is looking at the violation of the fifth amendment. and here, the fact that this

can be fairly characterized under law as the judge noted only strengthens our claim that this is the taking of discrete property interest, but not whether it's an easement under california law and the i am fact on the rights-- >> well, can you answer that question a little bit more simply? is this a question of whether it's a property interest under california law today or is it a question whether it would be regarded as property interest at the time of the adoption of the fifth amendment or is it something else? is it a generic concept of an easement, maybe we would look to the restatement of property? this is an important point. what is the answer? is there a simple answer to that question? >> yes, justice alito, we're using the term easement in the sense that the court used it in cosby and portsmouth harbor. it's not with allstate law,

what matters is the impinningment to the right to exclude is over the series of mere trespasses. >> what is it the definition of an easement then if it's not california law, it's not common-law, you acknowledge that this is not a classic-- not a classic easement. what is your definition of an easement? >> we're using easement in the same sense that this court used easement in cosby, portsmouth, keiser, aetna. we're using this to say that this is the taking, the right to exclude over and above a series of mere trespasses. >> well, the restatement applies an easement creates a nonpossessory right to use land in the possession of another and goes on. is that your definition, any right to enter land is an easement? >> justice alito, that may be the restatement's definition, that's not how we are using the term easement here. again, we're using the term easement as a shorthand taking

of a property right over and above near trespasses and it's certainly true that it grants the union the right to use our property for a discrete purpose and that as justice noted that is under california law. >> one last question if i can squeeze it in. how do you distinguish or do you not distinguish the right of union representatives to enter under the national labor relations act? >> justice alito, i don't think this court needs to address the access authorized under nlrs by virtue that the court has accessed that narrow right to only those situations where workers in inaccessible. and those cases didn't raise the questions, they were interpretations of the nlra. >> thank you. >> justice sotomayor? >> that's the problem i'm having. answer justice alito's question. under your theory and you're creating sort of a federal

common-law definition of what is easement is because you're not referring to california law. you're not referring to common-law. i guess you want us to make it up somehow. but would that -- with the nlrb rules and the limitations we created in babcock make you entitled to compensation? >> no, i do not think they would, justice sotomayor. i think in leechmere as narrow access under nlra, does not authorize taking of anything than what would be a mere one-time trespass. >> it's not one time, it could be much more under nlrb, it wouldn't be as much as this. but let me ask you this, counsel. aren't you then just conceding that this is not a per se rule and we have very few per se

rules in this area, and my late colleague justice ginsburg explained there are infinite ways in which government actions can affect property interest. the court has recognized few and variable rules in this area. given that, why don't we just take the arkansas gain theory or not theory, variables and apply them to this case? why don't you win under that? you're claiming -- and that's what the dissent said in the panel decision. you're claiming that this is different than the babcock situation or similar to the babcock situation because people don't live on the member premises, they speak english more than spanish and i'm not

sure that the language difference makes a difference in our analysis, but don't you win under babcock? >> justice sotomayor, we might, but the distinguishing between per se rules and ad hoc, taking clauses, the right to exclude in-- >> that's simply not true because we've had access right cases like keiser-aetna and yards, even arkansas-gain which was invasions of the right to exclude. all of those cases were identical to this one stick in the bundle of rice and there we just didn't apply a per se rule. we found in-- we suggested that some takings like in arkansas-gain were unconstitutional, but not under a per se analysis. >> justice sotomayor, i don't believe that that formulation

of keiser aetna survived subsequent decisions by this court. >> what about prune yard. >> prune yard is a limited rule only available to publicly accessible-- >> and one question, is your rule, can we except your absolutist rule and say it applies to only situations in which government -- in which access is provided to someone who is not a government official or a government agent or contractor? >> no, i don't think that would make a difference here, your honor. i think what matters is the extent of the physical enevaluation authorized by law. >> then you are putting at risk all of the government regimes that permit for a nuclear power plant. there are inspections almost on a daily basis, if not a weekly or monthly basis. some mines require when --

extensive visits. >> i don't believe that's correct, your honor. i believe as high discussion with justice breyer, you do not have the right to -- the right to search. the inspection regimes. >> thank you, counsel. justice kagan. >> mr. thompson, if i could go back first to your answers to just thomas, let's say that i don't think that this would count as an easement under california law, for a variety of means that justice thomas gave and justice alito gave. let's just assume that could be true. you do keep on talking about a discrete interest in property, so i guess my question is, what discrete interest are you talking about, if not an easement as defined by california law? >> justice kagan, we're talking

about the denial to the right to exclude third parties from our property for 120 days a year. >> i know what it says, but i don't think the denial as the right to exclude counts as dispute interest in property. the right to exclude is one of the sticks in the bundle that a property owner has, but usually when people talk about discrete interests in property, it's like a legal form, it's an easement, it's a fee simple, it's something like that, but you're not pointing to anything like that, am i right? >> that's correct, justice kagan, what we're pointing to is the same language that this court used in cosby to describe an easement-- >> sorry. you talk a lot about background principles of property law and that's the way you say of every inspection regime and every search regime, that somehow there's-- that there is a background principle of property law that's incorporated into this

analysis, so that these property owners don't really have a property right to exclude inspectors and so forth. but then you put that, you time that as of, i think, this goes to what justin alito was talking about, as of the time of the ratification of the constitution. and i guess i wonder why that should be. because these questions of what is your property interest seems as though it shouldn't stop at the time of the constitution. the takings clause operates as against whatever it is that property generally means, but why should that freeze at that time? >> justice kagan, i think that you're highlighting some ambiguousness what merits a background principle of law. i don't think that that concern is really implicated here

because as the court noted in lucas, the state camp creates a new background principle some 40 years ago. so, while there may be some ambiguity of what constitutes a background principle of property law, here there's no doubt that the ability to exclude unwanted third party interlopers was not a right that existed as a background principle of california law. >> can i get one more short one in, are you denying this-- the notion that i think comes from loretto, that there really is a different between permanent deprivations and temporary deprivations? >> justice kagan i don't -- i think that in so far as you're talking about a structure on what is property, that structure needs to be permanent to have abouter say treatment. in so far as the court is talking about access to one's property by individuals, nolan

dispelled the notion that the people have to be station there had 24/7. >> thank you. >> justice gorsuch. >> counsel, i think i'd like you to have a little more opportunity to respond to the charge that this would be revolutionary and the end of all regulatory regimes, that the government would never be able to walk on anyone's property again to do a search or to conduct tests, or ensure the safety of licensed operations there whether it's a power plant or otherwise, would you address that concern, please? >> yes, i'd be happy to, justice gorsuch. as the court is away, every one begins what is the property right that the property owner addresses and that looks to background and property law to determine what the scope of the property right is. with respect to the government's authority to search, this was certainly present at common-law and the fourth amendment puts limits on the government's power to

search, but recognizes that that is a power that the government possessed at all times and certainly at the time of the california founding. so, when the government exercises that power to search, as it does with administrative search and sections and other searches, it is not taking away a property right from you because that's nothing that you possessed. as the court said, the government doesn't have to pay for a duty that's already owed. >> well, what if california had passed an identical regulation to the one here, except allowing union organizers access, if this he allowed union opponents access, the down sides of the union. not a government worker to search compliance with the regulatory regime, but a third party being permitted and given a right to access the property, or suppose if california allowed any member of the

public to speak with employees for three years a day, 120 years a year about health and safety issues, educational students, medical treatment available to them or just to promote an ideological cause, would there be a different result? >> no, there would not, justice gorsuch. the property question, the takings question does not turn on the speech that is being advocated that we're right to work advocates for members of the public that were given access and dispute property interest to my clients, that would merit per se treatment under this court's doctrine. >> thank you very much, counsel. >> justice kavanaugh. >> i'm mystiied by some of the comments, but you're asking us to reinvent the wheel. we decided unanimously in 1956

how to balance property rights against union organizing rights in the babcock case and then, of course, then we reiterated that in justice thomas' opinion for the court there. the babcock briefs, we can go back into those, those are all about property rights against union organizing rights and then babcock considers that, and sets forth a rule. now, i think you probably prevail under that rule, but i'm curious why your argument is not as simple as justice clark's california supreme court justice clark's argument and his dissent in the '76 case that you cite where he just says under babcock, there's a rule, the board's regulation here goes beyond the babcock rule, access to private property to working hours when alternative means of communications exist and regulates therefore

unconstitutional. why is it not as simple as that? >> because, justice kavanaugh, as you're probably aware, nlra is are not under adjudicated-- >> let me stop you there. i think they're doing constitutional avoidance, and constitutional avoidance not necessarily to avoid a potentially unconstitutional, but an unconstitutional, unconstitutionality if the regulation were allowed to go beyond what the court allowed in babcock. so, in other words, it seems to me, especially if it goes back to the briefs in babcock, which are all about the fifth amendment, not all about, but they talk a lot about the fifth amendment, that then you read babcock and it is interpreting the statute as informed by the constitution and saying given the constitutional status of the property rights, we're only

going to allow very limited intrusion, again, as justice clark says for the california supreme court, when the alternative means of communication do, in fact, exist, then you can't go onto the property. your response to that? >> i agree with you, justice kavanaugh what they're doing is taking constitutional avoidance inquiry. i think we were unable or precluded from interpreting the access regulation in a similar manner because of the-- some decision of 1976. >> exactly, now that it's here, isn't that the simple easy response to this case, we've already considered 65 years ago the balance of property rights against labor organizing. we set forth a very clear rule and it was reiterated by justice thomas' majority opinion and you know, there's no reason to depart from that rule that we've seen, provides

expansive protection for property rights, but not without the exception as articulated in babcock, end of case. >> justice kavanaugh because the access regulation that is in effect in california right now affects a physical taking and it's that claim before this court. the claim we alleged in california on remand wants to promulgate a new rule that doesn't take access with not being a consideration that perhaps it can craft a rule, but it has not done so and the one before this court clearly violates. >> just be clear. i'm saying you would prevail under babcock. you don't want to prevail under babcock? >> i think that we would prevail, but-- >> justice barrett? >> mr. thompson, i think that both sides, you and the respondent have line drawn problems. >> let me explain, a lot of

questions starting with justice thomas' question about easements and justice kavanaugh talking about babcock and it goes to the question when does something arise, when does something become a physical taking such that the per se rule is triggered. let me ask you this, what if california had a regulation that permitted union organizers to go onto the property of your clients one hour a day, one day a year? is that a taking subject to the per se rule? >> yes, it is, justice barrett. and the court already held so in portsmouth harbor, at least indicated strongly when it said if the guns were to fire a single shot with the admitted intent that the property taking would be complete. if the government enacts a regulation that takes the property for one hour a year with admitted intent of occupying and appropriating that property, the compensation may be minimal, but is still a taking.

>> let me headache sure i understand the relevance of the focus on the amount of time and the degree of intrusion. it's really not about whether property has been taken, it's about whether that's reflective of a government's intent to occupy or take, which is why that language in portsmouth harbor talks about the if the inpfent behind a single shot was to assert control over the property, then the taking would be complete and there's no question about the intent here because it was accomplished by regulation, is that correct? >> that's exactly correct, justice barrett. >> i don't understand how section 7 under the nlra isn't accomplishing a taking? >> justice barrett, i think, i think it's possible that the nlra access could be justified as a constitutional condition and that is limited to the very remote scenario where workers are otherwise inaccessible and that the government can condition that ability to employ workers, completely removed from society from a very, very limited access right and then only when the board

weighs the property interest that would be at stake in a particular circumstance. >> okay. well, let me ask you, i mean, i think the problems here line drawing and other problems are, others of my colleagues have been suggesting that the licensing regime. and there are some employees international union have an amicus brief in which they say, well, listen, some of these justifications or some of these inspection regimes might be justified in the chamber of commerce makes this point as constitutional conditions, on participation and the agriculture and employment market. just as, say, for fda, licensing regimes and inspections can be justified as legitimate exercises of conditions on the government ear permitting the company to enter the pharmaceutical market. why doesn't that rationale apply to your entry into the agricultural market? >> because, justice barrett, as this court said, the right to

enter agriculture is not something that the government can hold hostage. it's not something that can be conditioned. >> why is the pharmaceutical industry different? is this an industry by industry calculus? >> we're not talking toxic chemicals, we're talking about a healthy snack. there's quite an unambiguous line between those aub stances that can cause public harm and entering into agriculture. >> thank you, counsel. a minute to wrap up? >> thank you, mr. chief justice. as many of the court's questions indicate, this case ultimately comes down to line drawing. the 9th circuit would draw that line at 24/7, 365 day occupations and the board rejects that line and explains that a daylight easing would be a per se physical taking. we painted that if not explicit by by the court's stigs in portsmouth harbor. it gives due respect to the fundamental right to exclude that's at the heart of the

fifth amendment. if the access easement taken by the board is so valuable to it, it can simply pay the value of that easement. decision of the 9th circuit should be reversed. >> thank you, counsel. >> general. >> mr. chief justice and may it please the court, only a limited nument of organizers to enter the petitioner's farm speaking nonwork time during certain periods of the year for more more than three hours a day and restrictions. the only question before the court is whether that's a per se taking and the answer is no. in this area of the law, and the extreme regulations that are the functional equivalent of the government taking of private party. two narrow categories of taking. lucas category for regulations that limit all economically beneficial uses and loretto for

organizations with a permanent and continuous physical invasion which this court said effectively destroys the owners rights and their property. other regulations may also affect taking, but they're subject to the standard ad hoc inquiry examining the nature of the regulation and the particular burdens it imposes and that's why lucas emphasized eliminating benefitted uses would not be a per se taking even though there's be a strong ad hoc claim and why loretto says authorizing intermittent physical intrusions are subject to ad hoc treatment even though the duration and severity of the intrusion is a critical factor that may predominate in that analysis. petitioners can't claim at that it destroyed any rights to their property or functional equivalent of taking over their farm. farmers are free to challenge under the taking clause, but judicial review should be focusing on the nature of this

access regulation and the particular burdens it imposes, not by the blunt instrument of a per se rule. mr. chief justice, i welcome the court's questions. >> thank you, counsel. you began by saying this authorizes a limited number of organizers to enter the property, but what is that number? >> it's typically two organizers for each rook crew, if there are greater than 30 workers, there can be one attentional organizer for each 15 workers. >> what do you do if there's more than one union that wants access? it's not al all unusual for unions to be competing for representation, so, does each union get its own 120 days? >> yes, your honor, i think that's right as a theoretical matter. in a matter in our experience there are not typically multiple unions coming on in a particular year, but that's theoretically possible. >> and i gather there's no limit on that, whether it's

theoretical or not, this could end up being an authorization to enter every day of the year which you would acknowledge is a taking? >> well, your honor, it would be in that hypothetical scenario, potentially, but you're only allowed to come on when people are working there during non-work times, but unknown if it's actually to year-round. in practice in the briefing it's exceptionally rare to have even with un30-day access notice and we've never had anything close to year round on honor's hypothetical. >> you acknowledge, as i understand it, that if the access was every day during daylight hours that that would be a taking? >> no, your honor, i don't think that's quite our position. we think that typically, this has to be assessed through the ad hoc inquiry. what loretto and nolan said if it happened--

>> well, is there a situation where you think the ad hoc inquiry would say that every day, daylight hours does not violate the taking clause? >> no, i think that this degree of physical intrusion and potentially much greater interference with expectations and why that's why you want to have an ad hoc inquiry so you can take account of the features of the hypothetical like that that make it look more like a taking. their rule, of course, would apply regardless even to one hour a year on justice barrett's hypothetical and that would ignore the critical features that go into this amendment analysis. >> under your analysis, is the property interest defined by state law or common-law? >> well, there's a fee simple property interest here, but in determining whether it is a taking, you're going to look to the severity of the burden. and we don't think that there is any basis for treating this

as an easement under state or federal common-law. >> thank you, counsel. justice thomas? >> thank you, mr. chief justice. mr. mongan, i'm interested how related the inspection or the opportunity to be on private property has to do with the-- how related does it have to be to the business operation? for example, could you have the exact same requirements except during nonbusiness hours for the property to be available for training of the -- of the national guard, for example, or the state police, since it's open property, just simply say for three hours a day, not more

than 120 days a year? but certainly not to interfere with the business, the state police could train there? >> your honor, i think that -- i think that would be a stronger claim under the ad hoc inquiry. it's pretty significant interference, you don't expect your property to be training grounds for the state police and it's going to be a substantially, you know, severe physical intrusion and penn central itself says that a critical focus of the inquiry is whether there is a physical intrusion authorized by the regulation. >> well, i understand your point, but i'm really interested in how this is different from the training. so, i'm sorry, from the union's presence while workers are there. if the condition is that the

only two or three police officers can train during nonbusiness hours and only in unoccupied portions of the property, how is that -- if that is closer to the line than the union coming onto property while workers are there and possibly even interfering with workers, how is the intrusion of the police officers different from that of the union organizers? >> well, i guess i'd want to know more about what the police officers are allowed to do on the property, but we do know under this regulation, your honor, that the union organizers are not allowed to interfere with the property or agricultural operations, they can only talk to the workers during nonwork periods, only two organizers in the typical case. they're not, you know, firing guns or doing the types of things you might expect the state-- ments let's say the state

police use it for callisthenics and working out and they're not firing guns and they're not meeting with the employees and they are to remain as inconspicuous as possible. so why is that closer to the line than the union organizers? >> well, i think it does have to do with the fact that this is a situation related to a business activity that's being conducted on the land, and your hypothetical would be sort of without regard to the activities on the land, but it would be assessed in an ad hoc inquiry, but neither of those would be intrusion-- >> justice breyer. >> i think the petitioners are saying whether this regulation is excessive or not is beside the point. that's a question whether there's a regulatory taking, whether it went too far. this is the kind of taking that is no matter what, requires

compensation under the fifth amendment, it is a fifth amendment taking because it is a classical property interest. we have previously defined or sort of said that that kind of interest has to be a taking that is continuous and indefinite, by taking even an inch of somebody's apartment house to put up a catv system or taking an easement for the beach. the virtue of their approach is that it's pretty clear, i think, because otherwise, you get into the mess of saying, well, what about a year? here it's 4% of all the year's hours and 10% or 12% of all the daylight hours and, but it is not government coming in, it's a private person coming in, that's what they say. so what are the rules that distinguish an easement or not? i thought an easement, for example, ran with the land. so that if it's no longer

agricultural land, but rather is a steel mill, you can't transfer the easement, it doesn't exist anymore. nobody can go on the property. there may be other characteristics. what are they in your opinion that distinguishes this case from a classical easement? >> well, your honor, i think that this is not a classical easement. as you noted it is not pertinent to any particular parcel of land. it is a regulatory statement that applies to a particular business conducted on the land and access not to a particular pathway or parcel, it's to the employees where they are and if they're congregated on the bus off the property before or after work, it's access to the bus not the form. and it's know the assigned or conveyed wouldn't be recorded and it doesn't have the hallmarks of an easement and your honor, i don't think they've articulated a simple

per se rule here. they've offered five or fix different formulations of the test and organizely suggested strongly you'd be looking at state law and now disavowed that, but now they don't have whether a court would discern, whether it's an access easement or series of trespasses. if you get past that, then the courts are going to have to apply a multitude of very complex exceptions in the mine run case rather than looking at considerations that have always been the focus of the fifth amendment inquiry, the severity of the burden and the character of the particular government action. >> thank you. >> thank you. >> justice alito? >> well, as justice barrett said, both you and mr. thompson have line drawing challenges here. so let's suppose that -- let's start out with a town taking an

easement so that people in the town can walk over somebody's beach front property to get to a public beach. you would conclude that that is the per se taking, right? >> your honor, i'd want to know a little more to know how to analyze it, but yes, i think under any standard, a pertinent easement over the property would be a taking and what this court has said in nolan, that it's per se under this court's precedent. if it's a limited period of time, i guess you'd analyze it under pen central, but-- >> that seems like a pretty simple question, what would you need to know? the town says we're going to take an easement over your property so people can walk across your property to to get from point a to point b. >> i think that's right, your honor. under your precedent, it has to be continuous to be per se, but hard for me to conceive a situation where public access gave pertinent to a particular

parcel is not going to be a taking under the ad hoc taking. >> and if it doesn't apply, 365 days a year. suppose it's 364 days a year. suppose it's 264 days a year. suppose it's only on the memorial day, fourth of july and labor day weekends, different answer? >> i think those are going to be slam-dunks takings can't claim under penn central, your honor, because they're substantially interfering with your expectations and singling out one land owner. >> why do you need to get to penn central under-- did we start out with penn central, an easement for everybody 365 days a year, is that a penn central question? do you think everything is a penn central question? >> your honor, i think under this court's framework it's outside of the per se rule because it's not destroying all the rights in the property. let me say this, i think if the court focused on the formal

easement scenario and wants to look at the easement for per se where it's pertinent to a property, that doesn't give us much heartburn because i think that's something we'll pay for in any event. what would be deeply problematic if the court adopted a rule, a per se treatment for any sort of authorized intrusion, including a limited intrusion as part of regulatory-- >> if you're not willing to conclude that a permanent easement across somebody's property to get from point a to point b is per se taking, then i don't know where your argument is going. and if you're not taking that position, then i really don't understand exactly where you're drawing the line. that's what i'm trying to get at. >> yes, your honor. i think that those would be takings under any standard, but we should not adopt a broad per se rule that applies to the different regulatory regime that we have here and many types of access that looks like

an easement. >> thank you. >> justice sotomayor? >> counsel, i -- i'm following up on justice alito's question in part. i think you're saying that a per se rule should apply only to permanent and continuous physical invasions of a property right that's defined by state law, correct? >> so if there was a permanent easement, you suggest it might be then a taking? a formal easement under california law? >> i think that's right your honor if i understand the question. >> let me take you a step further. if it's not, why should we be applying the penn central test? that test really doesn't-- fails to capture the significant interest in the right to exclude at stake, in physical invasion cases.

one of my colleagues was skeptical there would be much money involved in a situation like this one because i suspect there is very little economic damage being done to a property in which there's intermittent inspections and there's nothing that runs with the land or the business. i mean, if somebody buys the land and changes the business, then this access regulation has no applicability that suggests to me it has to be a different test. it can't be penn central. why can't it be arkansas gain? >>, i think that an ad hoc approach, and we think that as the inquiry-- >> counselor, let me stop you there. ad hoc won't satisfy many people. we need something that gives clear guidance, so give me a

clear, a clear method of addressing this case. so something like justice thomas' hypothetical doesn't become permissible for the government to do. seems to me that letting the government come and use your land for nonbusiness purposes or nonbusiness related purposes seems to be exactly what the takings clause was intended to avoid. articulate the rule to me. >> i think the court has given clear guidance and pen central itself it doesn't-- . >> well, i think the clear guidance isn't ad hoc and progeny, i don't think it's pen central, i think it's those cases. >> if i could say previously, the court made clear if there was substantial physical

intrusion, that factor can dominate. in keiser aetna, it applies to an action that involves substantial physical intrusion and found that taking on that basis primarily without looking closely at diminution in value and i think it's their concern about how lower courts apply that ad hoc framework to access regulations, the answer would be to grant review in a case that actually presents a penn central challenge to access regulation not to adopt a very broad per se rule that would swell up a lot of other access type regulations. >> justice kagan. >> general mongan, i'm struggling to understand your argument. can i just ask you to clarify this? as i understand what you said to justice alito you said maybe 365/24 taking of an easement, something that did in fact qualify as an easement, maybe that would be a per se taking. you sort of said maybe to that,

but if this were -- if it was not a formal easement, you know, if there was not a discrete property easement that the 365/24 possession of property would not qualify as a per se taking, but instead would be resolved under penn central, is that correct? >> no, your honor and let me clarify. we think loretto and nolan made clear if they had a continuous access right, required under an easement or a regulatory access right. that that would be per se. >> then you do get into the line drawing problem. i mean, i guess i thought that you were getting rid of your line drawing problem by just getting rid of loretto. but if there -- if you do acknowledge that, then 365/24 ability to intrude on property is a per se taking under loretto, and nolan, then you

know, just ratcheting back from that, when does it stop being a per se taking? >> what loretto and nolan said, you require permanent and continuous access because it destroys the owner's rights with respect to that part of the property. >> 365, and this is a concrete question. 365 days? how about 360 days? >> i think a court could conclude that that effectively destroys the rights in the same way that the year round access. >> where do you stop? where does it stop? if it's 365/24, with are is your line? now it's 200 days. >> i think it's the line that the court suggested in loretto, you know, is there a continued ability to use, possess and dispose of this property and your honor, i think any line drawing problems with that position, i think followed from your precedent, are going to not recurrent frequently

because we don't have regulations close to continuous and not going to create practical problems because it's either going to be per se or a slam-dunk case under pen central. the bigger line drawing problems are associated with my friend's rule, it's not clear how the threshold test that would apply in every challenge to access regulation would be applied. >> he has his problems, but i'm really trying to figure, you know, figure out the answer to your problems. i guess i just don't see, even if you don't want to give me, i can understand you're not wanting to give me, oh, it's this number, but what's the principle that would enable you to set a line someplace short of 365 days? >> i think that the principle here is that per se treatment is a reserved for extreme cases that really are the functional equivalent of the government coming on and directly appropriating your property and you may say that about an access easement that applies

365 days out of the year, but where it's only a few hours for a short period. >> thank you, general. >> justice gorsuch. >> i'd like to pick up on that. if your brief, you did concede that an easement identical to the one in nolan, but limited to daylight hours may qualify as a taking without regard to other factors so i think that at least was your point there if that's the case, let's take a few things that move away from it a little bit. what if the state eased access to the residents of a take neighborhood. would that take it out of a per se taking? >> no, your honor. if i'm understanding the hypothetical and you're talking about continuous access, but only to residents of a certain neighborhood, i think that would per se under loretto and nolan and the reason-- >> and then what if the state prohibited any of those residents from transferring their interests, a personal

right? would that cease to be a per se taking? >> your honor, i think that if we're contemplating some sort of continuous ability for third parties to come onto the property whenever they want, that would be a per se taking because it would effectively destroy the owner's rights with regard to that strip of property. >> what if the state had issued a regulation announcing that access right, rather than formally recording it. would that make a difference? >> if it's continuous, i think if it's done by regulation, that would be a per se taking. i think that the question is, if it is an intermittent regulation, that only applies for minimum period for the year, and there's substantial protections, to minimize the burden. >> still per se, still per se. finally, what if the state promised to remove the easement in the event that the property owner agreed to have it developed into a commercial one?

>> your honor, i guess i'm not sure exactly how that would be analyzed. i think that it would still be continuous in nature and potentially permanent. i think that's going to be a taking without, you know, observing the possible nolan, dolan exception, it's likely to be a taking under either penn central or per se. i guess it might not be permanent depending on how you structure the ip hoo hype. >> all of these are per se in your view and i guess the key difference is how many days are at issue, but daylight hours only is enough so half of the year is enough, i assume then? >> daylight hours, the focus is whether there's ability to use, possession or dispose of the properties or whether the rights are effectively destroyed.

if the government says the only time you can exclude somebody from the beach is in the middle of the night we think that could destroy your personal rights and-- . thank youments justice kavanaugh. >> thank you, chief justice and good morning, mr. mongan, the questions have been a lot about line drawing and i wanted to ask you, again, the flip side and the neighbor organizing context has drawn the lines and established a narrow and simple resolution for this case. and i wanted you to tell me why it's wrong or why you disagree with it. babcock was a statutory case, but informed by the constitution explicitly as i read it and the question is how much access will we allow under the statute given the constitutional back drop and reflects the court's

understanding of the constitution ap how much protection there is for property rights at page 112 of the decision and no access unless you can show that there are no alternative means of communications that exist to simplify what it says there. doesn't babcock look at this case? >> the court wasn't recognizing the need to balance between the property rights and the rights to this information. i think the board expressly recognized the needs in its regulation and took a somewhat different approach in the concept of different times for elections and unique sector for california's economy? >> isn't that the problem there. it took a different approach that inclueded on the property lights roar than the supreme court, this court allowed in

babcock. isn't that justice clark in the california supreme court decision pointed that out as the exact problem with the california regulation and it went too far and went beyond the nlra? >> your honor, i guess i don't understand how that would be a per se rule, but-- >> put aside nomenclature. you can't get access to the property if there are alternative means of communication. that's the babcock rule how to acomplicate the takings clause and the labor organizing rights. >> and your honor, i think that that can be a consideration that absolutely could factor into an inquiry that looked at the relevant circumstances of this regulation as it applies to land owners, but it wouldn't seem to provide a basis for a drop being a broad per se rule that would apply across the board and certainly not one that applies to access regulations that have nothing

to do with this type of communication. >> you mean outside the labor context? >> right, your honor. i mean, they're pushing for a broad per se rule. >> exactly, that's why i was pushing on them that i don't understand why they're not relying on babcock and the labor organizing context. they seem to want a much broader rule. and if that reflected the balance of the constitutional right here, you would lose under babcock, i think. i'll end there and you can move on to justice barrett. thank you. >> thank you. >> justice barrett. >> general mongan, so, obviously, this would not be an approach that would apply typically to commercial property. with this hypothetical based on nolan. let me give you a hypothetical based on my personal residents on the corner of two city

streets and beneficial for people to protest on my lawn because it's highly visible to traffic passing by, but exactly like this one, do it 120 days a year, three hours at a time during rush hour. >> that's not that-- it's penn central? >> that's a penn central. >> your brief say that they couldn't identify penn central where the court is a taking and diminution in value is less than 50%. surely my property value hasn't decreased more than 50% under the regulation that i describe. >> i don't believe that's the right way to approach that. >> where are you getting that? >> from penn central itself, your honor which says that if there is a regulation authorizing a physical intrusion, courts should be more likely to find the taking, apply that and found taking

based on the severity of the physical intrusion and if there's a concern that courts are not properly applying penn central to this type of situation, then the solution would be to take that type of case as i mentioned and clarify how it should apply. >> but general, penn central is designed to be permissive toward regulations, given the property in regular life. and you're saying in this particular context and i'm not sure i read aetna the same way you do, but you're saying physical occupations are different. so if physical occupations different the easier way to handle them in loretto, saying they're subjects to a per se rule. >> because there are going to be some easy penn central cases perhaps like the hypothetical you offered, but in the middle of the spectrum, there are difficult cases with-- you need to know about the set

vart of the burdens and the character and nation of the government action. >> let me interrupt you there so i don't lose all of my time. what is the big deal here? if the severity goes to compensation petitioners claim. why would it be for california to the say to the unions, if you want taking, you have to pay $50, let's say that the court says that's a fair amount for the compensation, what's wrong with na? >> it would be a big deal because then you'd be dipping past the considerations as to the severity of the burden and the nation of the actions that inform the fifth amendment analysis and that wouldn't be as straight forward as my friend suggests because you have to apply a multitude of complex exceptions before you get to determining whether compensation would be required. >> thank you, counsel. >> a minute to wrap up, general mongan. >> thank you, the rule we're defending today carries out the purpose of the fifth amendment considering the burdens imposed by intermittent access

regulation and the character of that regulation before finding the taking. the rule proposed by petitioners would require you to overrule your precedent and find per se takings without regard to those important factors. now, they say it would simplify the doctrine, but actually would make things far more complicated than uncertain first by adopting the murky threshold test that tries to distinguish between a series of authorized trespasses and come pensable, but undefined access easement and requiring courts to apply a multitude of complex exceptions to all the access regulations that fall within the scope of that rule and the sheer volume of words, petitioners and their amici, to mitigate the harmful impact of their rule, it's strong evidence that the rule is not a sensible one. thank you. >> thank you, counsel. rebuttal, mr. thompson? >> thank you, mr. chief justice. three quick points. an um into of discussions about

the easement characterization in this case. we characterize the easement as the court did in portsmouth harbor, and easement, neither of these, none of those cases involved a traps fuhrable or alienable priority-like interest. nevertheless in all three cases the court treated the taking inquiry as requiring per se treatment and the federal circuit has done the same thing in hendler versus mesa. up until this court, the board has never disputed characterization of an easement, but an easement that authorized intermittent access. the taking of the property treatment. i want to echo justice barrett's concern about penn central and that my friend's that penn central are unfounded, as she noted no court, at least 9th circuit and federal circuit, have been able to find a penn central case where value was diminished less

than 50%. and lastly, on the question of the day, the line drawing, we're asking the court to draw the line that it's always drawn, the line between use restrictions and physical invasions and occupations. that's the line that this court has always drawn and where occupation, or mineral compensation as in loretto. and as this court questioning is concerned unable to draw a principal line. for these reasons the decision of the 9th circuit should be reversed. thank you. >> thank you, counsel. the case is submitted. ..

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