Cedar Point Nursery v. Hassid ( 2021 )

(Slip Opinion) OCTOBER TERM, 2020 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CEDAR POINT NURSERY ET AL. v. HASSID ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 20–107. Argued March 22, 2021—Decided June 23, 2021
A California regulation grants labor organizations a “right to take ac-
cess” to an agricultural employer’s property in order to solicit support
for unionization. Cal. Code Regs., tit. 8, §20900(e)(1)(C). The regula-
tion mandates that agricultural employers allow union organizers onto
their property for up to three hours per day, 120 days per year. Or-
ganizers from the United Farm Workers sought to take access to prop-
erty owned by two California growers—Cedar Point Nursery and
Fowler Packing Company. The growers filed suit in Federal District
Court seeking to enjoin enforcement of the access regulation on the
grounds that it appropriated without compensation an easement for
union organizers to enter their property and therefore constituted an
unconstitutional per se physical taking under the Fifth and Fourteenth
Amendments. The District Court denied the growers’ motion for a pre-
liminary injunction and dismissed the complaint, holding that the ac-
cess regulation did not constitute a per se physical taking because it
did not allow the public to access the growers’ property in a permanent
and continuous manner. A divided panel of the Court of Appeals for
the Ninth Circuit affirmed, and rehearing en banc was denied over dis-
sent.
Held: California’s access regulation constitutes a per se physical taking.
Pp. 4–20.
(a) The growers’ complaint states a claim for an uncompensated tak-
ing in violation of the Fifth and Fourteenth Amendments. Pp. 4–17.
(1) The Takings Clause of the Fifth Amendment, applicable to the
States through the Fourteenth Amendment, provides: “[N]or shall pri-
vate property be taken for public use, without just compensation.”
When the government physically acquires private property for a public
use, the Takings Clause obligates the government to provide the owner
2 CEDAR POINT NURSERY v. HASSID
Syllabus
with just compensation. Tahoe-Sierra Preservation Council, Inc. v. Ta-
hoe Regional Planning Agency, 535 U. S. 302, 321. The Court assesses
such physical takings using a per se rule: The government must pay
for what it takes. Id., at 322.
A different standard applies when the government, rather than ap-
propriating private property for itself or a third party, instead imposes
regulations restricting an owner’s ability to use his own property. Id.,at 321–322. To determine whether such a use restriction amounts to
a taking, the Court has generally applied the flexible approach set
forth in Penn Central Transportation Co. v. New York City, 438 U. S.
104, considering factors such as the economic impact of the regulation,
its interference with reasonable investment-backed expectations, and
the character of the government action. Id., at 124. But when the
government physically appropriates property, Penn Central has no
place—regardless whether the government action takes the form of a
regulation, statute, ordinance, or decree. Pp. 4–7.
(2) California’s access regulation appropriates a right to invade
the growers’ property and therefore constitutes a per se physical tak-
ing. Rather than restraining the growers’ use of their own property,
the regulation appropriates for the enjoyment of third parties (here
union organizers) the owners’ right to exclude. The right to exclude is
“a fundamental element of the property right.” Kaiser Aetna v. United
States, 444 U. S. 164, 179–180. The Court’s precedents have thus
treated government-authorized physical invasions as takings requir-
ing just compensation. As in previous cases, the government here has
appropriated a right of access to private property. Because the regu-
lation appropriates a right to physically invade the growers’ prop-
erty—to literally “take access”—it constitutes a per se physical taking
under the Court’s precedents. Pp. 7–10.
(3) The view that the access regulation cannot qualify as a per se
taking because it does not allow for permanent and continuous access
24 hours a day, 365 days a year is insupportable. The Court has held
that a physical appropriation is a taking whether it is permanent or
temporary; the duration of the appropriation bears only on the amount
of compensation due. See United States v. Dow, 357 U. S. 17, 26. To
be sure, the Court in Loretto v. Teleprompter Manhattan CATV Corp.,
458 U. S. 419, discussed the heightened concerns associated with “[t]he
permanence and absolute exclusivity of a physical occupation” in con-
trast to “temporary limitations on the right to exclude,” and stated that
“[n]ot every physical invasion is a taking.” Id., at 435, n. 12. But the
regulation here is not transformed from a physical taking into a use
restriction just because the access granted is restricted to union organ-
izers, for a narrow purpose, and for a limited time. And although the
Cite as: 594 U. S. ____ (2021) 3
Syllabus
Board disputes whether the access regulation appropriates an ease-
ment as defined by California law, it cannot absolve itself of takings
liability by appropriating the growers’ right to exclude in a form that
is a slight mismatch from state property law.
PruneYard Shopping Center v. Robins, 447 U. S. 74, does not cut
against the Court’s conclusion that the access regulation constitutes a
per se taking. In PruneYard the California Supreme Court recognized
a right to engage in leafleting at the PruneYard, a privately owned
shopping center, and the Court applied the Penn Central factors to
hold that no compensable taking had occurred. 447 U. S., at 78, 83.
PruneYard does not establish that limited rights of access to private
property should be evaluated as regulatory rather than per se takings.
Restrictions on how a business generally open to the public such as the
PruneYard may treat individuals on the premises are readily distin-
guishable from regulations granting a right to invade property closed
to the public. Pp. 10–15.
(4) The Court declines to adopt the theory that the access regula-
tion merely regulates, and does not appropriate, the growers’ right to
exclude. The right to exclude is not an empty formality that can be
modified at the government’s pleasure. Pp. 15–17.
(b) The Board’s fear that treating the access regulation as a per se
physical taking will endanger a host of state and federal government
activities involving entry onto private property is unfounded. First, the
Court’s holding does nothing to efface the distinction between trespass
and takings. The Court’s precedents make clear that isolated physical
invasions, not undertaken pursuant to a granted right of access, are
properly assessed as individual torts rather than appropriations of a
property right. Second, many government-authorized physical inva-
sions will not amount to takings because they are consistent with
longstanding background restrictions on property rights, including tra-
ditional common law privileges to access private property. See Lucas v.
South Carolina Coastal Council, 505 U. S. 1003, 1028–1029. Third, the
government may require property owners to cede a right of access as a
condition of receiving certain benefits, without causing a taking. Un-
der this framework, government health and safety inspection regimes
will generally not constitute takings. In this case, however, none of
these considerations undermine the Court’s determination that the ac-
cess regulation gives rise to a per se physical taking. Pp. 17–20.
923 F. 3d 524, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS,
ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. KAVANAUGH, J.,
filed a concurring opinion. BREYER, J., filed a dissenting opinion, in
which SOTOMAYOR and KAGAN, JJ., joined.
Cite as: 594 U. S. ____ (2021) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–107
_________________
CEDAR POINT NURSERY, ET AL., PETITIONERS v.
VICTORIA HASSID, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 23, 2021]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
A California regulation grants labor organizations a
“right to take access” to an agricultural employer’s property
in order to solicit support for unionization. Cal. Code Regs.,
tit. 8, §20900(e)(1)(C) (2020). Agricultural employers must
allow union organizers onto their property for up to three
hours per day, 120 days per year. The question presented
is whether the access regulation constitutes a per se physi-
cal taking under the Fifth and Fourteenth Amendments.
I
The California Agricultural Labor Relations Act of 1975
gives agricultural employees a right to self-organization
and makes it an unfair labor practice for employers to in-
terfere with that right. Cal. Lab. Code Ann. §§1152, 1153(a)
(West 2020). The state Agricultural Labor Relations Board
has promulgated a regulation providing, in its current form,
that the self-organization rights of employees include “the
right of access by union organizers to the premises of an
agricultural employer for the purpose of meeting and talk-
ing with employees and soliciting their support.” Cal. Code
2 CEDAR POINT NURSERY v. HASSID
Opinion of the Court
Regs., tit. 8, §20900(e). Under the regulation, a labor or-
ganization may “take access” to an agricultural employer’s
property for up to four 30-day periods in one calendar year.
§§20900(e)(1)(A), (B). In order to take access, a labor organ-
ization must file a written notice with the Board and serve
a copy on the employer. §20900(e)(1)(B). Two organizers
per work crew (plus one additional organizer for every 15
workers over 30 workers in a crew) may enter the em-
ployer’s property for up to one hour before work, one hour
during the lunch break, and one hour after work.
§§20900(e)(3)(A)–(B), (4)(A). Organizers may not engage in
disruptive conduct, but are otherwise free to meet and talk
with employees as they wish. §§20900(e)(3)(A), (4)(C). In-
terference with organizers’ right of access may constitute
an unfair labor practice, §20900(e)(5)(C), which can result
in sanctions against the employer, see, e.g., Harry Carian
Sales v. Agricultural Labor Relations Bd., 39 Cal. 3d 209,
231–232, 703 P. 2d 27, 42 (1985).
Cedar Point Nursery is a strawberry grower in northern
California. It employs over 400 seasonal workers and
around 100 full-time workers, none of whom live on the
property. According to the complaint, in October 2015, at
five o’clock one morning, members of the United Farm
Workers entered Cedar Point’s property without prior no-
tice. The organizers moved to the nursery’s trim shed,
where hundreds of workers were preparing strawberry
plants. Calling through bullhorns, the organizers disturbed
operations, causing some workers to join the organizers in
a protest and others to leave the worksite altogether. Cedar
Point filed a charge against the union for taking access
without giving notice. The union responded with a charge
of its own, alleging that Cedar Point had committed an un-
fair labor practice.
Fowler Packing Company is a Fresno-based grower and
shipper of table grapes and citrus. It has 1,800 to 2,500
Cite as: 594 U. S. ____ (2021) 3
Opinion of the Court
employees in its field operations and around 500 in its pack-
ing facility. As with Cedar Point, none of Fowler’s workers
live on the premises. In July 2015, organizers from the
United Farm Workers attempted to take access to Fowler’s
property, but the company blocked them from entering.
The union filed an unfair labor practice charge against
Fowler, which it later withdrew.
Believing that the union would likely attempt to enter
their property again in the near future, the growers filed
suit in Federal District Court against several Board mem-
bers in their official capacity. The growers argued that the
access regulation effected an unconstitutional per se physi-
cal taking under the Fifth and Fourteenth Amendments by
appropriating without compensation an easement for union
organizers to enter their property. They requested declar-
atory and injunctive relief prohibiting the Board from en-
forcing the regulation against them.
The District Court denied the growers’ motion for a pre-
liminary injunction and granted the Board’s motion to dis-
miss. The court rejected the growers’ argument that the
access regulation constituted a per se physical taking, rea-
soning that it did not “allow the public to access their prop-
erty in a permanent and continuous manner for whatever
reason.” Cedar Point Nursery v. Gould, 2016 WL 1559271,
*5 (ED Cal., Apr. 18, 2016) (emphasis deleted). In the
court’s view, the regulation was instead subject to evalua-
tion under the multifactor balancing test of Penn Central
Transportation Co. v. New York City, 438 U. S. 104 (1978),
which the growers had made no attempt to satisfy. Cedar
Point Nursery v. Gould, 2016 WL 3549408, *4 (ED Cal.,
June 29, 2016).
A divided panel of the Court of Appeals for the Ninth Cir-
cuit affirmed. The court identified three categories of regu-
latory actions in takings jurisprudence: regulations that
impose permanent physical invasions, regulations that de-
4 CEDAR POINT NURSERY v. HASSID
Opinion of the Court
prive an owner of all economically beneficial use of his prop-
erty, and the remainder of regulatory actions. Cedar Point
Nursery v. Shiroma, 923 F. 3d 524, 530–531 (2019). On the
court’s understanding, while regulations in the first two
categories constitute per se takings, those in the third must
be evaluated under Penn Central. 923 F. 3d, at 531. The
court agreed with the District Court that the access regula-
tion did not fall into the first category because it did not
“allow random members of the public to unpredictably trav-
erse [the growers’] property 24 hours a day, 365 days a
year.” Id., at 532. And given that the growers did not con-
tend that the regulation deprived them of all economically
beneficial use of their property, per se treatment was inap-
propriate. Id., at 531, 534.
Judge Leavy dissented. He observed that this Court had
never allowed labor organizers to enter an employer’s prop-
erty for substantial periods of time when its employees
lived off premises. Id., at 536; see Lechmere, Inc. v. NLRB,
502 U. S. 527, 540–541 (1992); NLRB v. Babcock & Wilcox
Co., 351 U. S. 105, 113 (1956). As he saw it, the regulation
constituted a physical occupation and therefore effected a
per se taking. 923 F. 3d, at 538.
The Ninth Circuit denied rehearing en banc. Judge Ikuta
dissented, joined by seven other judges. She reasoned that
the access regulation appropriated from the growers a tra-
ditional form of private property—an easement in gross—
and transferred that property to union organizers. Cedar
Point Nursery v. Shiroma, 956 F. 3d 1162, 1168, 1171
(2020). The appropriation of such an easement, she con-
cluded, constituted a per se physical taking under the prec-
edents of this Court. Id., at 1168.
We granted certiorari. 592 U. S. ___ (2020).
II
A
The Takings Clause of the Fifth Amendment, applicable
Cite as: 594 U. S. ____ (2021) 5
Opinion of the Court
to the States through the Fourteenth Amendment, pro-
vides: “[N]or shall private property be taken for public use,
without just compensation.” The Founders recognized that
the protection of private property is indispensable to the
promotion of individual freedom. As John Adams tersely
put it, “[p]roperty must be secured, or liberty cannot exist.”
Discourses on Davila, in 6 Works of John Adams 280
(C. Adams ed. 1851). This Court agrees, having noted that
protection of property rights is “necessary to preserve free-
dom” and “empowers persons to shape and to plan their own
destiny in a world where governments are always eager to
do so for them.” Murr v. Wisconsin, 582 U. S. ___, ___ (2017)
(slip op., at 8).
When the government physically acquires private prop-
erty for a public use, the Takings Clause imposes a clear
and categorical obligation to provide the owner with just
compensation. Tahoe-Sierra Preservation Council, Inc. v.
Tahoe Regional Planning Agency, 535 U. S. 302, 321 (2002).
The Court’s physical takings jurisprudence is “as old as the
Republic.” Id., at 322. The government commits a physical
taking when it uses its power of eminent domain to formally
condemn property. See United States v. General Motors
Corp., 323 U. S. 373, 374–375 (1945); United States ex rel.
TVA v. Powelson, 319 U. S. 266, 270–271 (1943). The same
is true when the government physically takes possession of
property without acquiring title to it. See United States v.
Pewee Coal Co., 341 U. S. 114, 115–117 (1951) (plurality
opinion). And the government likewise effects a physical
taking when it occupies property—say, by recurring flood-
ing as a result of building a dam. See United States v. Cress,
243 U. S. 316, 327–328 (1917). These sorts of physical ap-
propriations constitute the “clearest sort of taking,”
Palazzolo v. Rhode Island, 533 U. S. 606, 617 (2001), and
we assess them using a simple, per se rule: The government
must pay for what it takes. See Tahoe-Sierra, 535 U. S., at
322.
6 CEDAR POINT NURSERY v. HASSID
Opinion of the Court
When the government, rather than appropriating private
property for itself or a third party, instead imposes regula-
tions that restrict an owner’s ability to use his own prop-
erty, a different standard applies. Id., at 321–322. Our ju-
risprudence governing such use restrictions has developed
more recently. Before the 20th century, the Takings Clause
was understood to be limited to physical appropriations of
property. See Horne v. Department of Agriculture, 576 U. S.
351, 360 (2015); Legal Tender Cases, 12 Wall. 457, 551
(1871). In Pennsylvania Coal Co. v. Mahon, 260 U. S. 393(1922), however, the Court established the proposition that
“while property may be regulated to a certain extent, if reg-
ulation goes too far it will be recognized as a taking.” Id.,
at 415. This framework now applies to use restrictions as
varied as zoning ordinances, Village of Euclid v. Ambler Re-
alty Co., 272 U. S. 365, 387–388 (1926), orders barring the
mining of gold, United States v. Central Eureka Mining Co.,
357 U. S. 155, 168 (1958), and regulations prohibiting the
sale of eagle feathers, Andrus v. Allard, 444 U. S. 51, 65–66
(1979). To determine whether a use restriction effects a
taking, this Court has generally applied the flexible test de-
veloped in Penn Central, balancing factors such as the eco-
nomic impact of the regulation, its interference with rea-
sonable investment-backed expectations, and the character
of the government action. 438 U. S., at 124.
Our cases have often described use restrictions that go
“too far” as “regulatory takings.” See, e.g., Horne, 576 U. S.,
at 360; Yee v. Escondido, 503 U. S. 519, 527 (1992). But
that label can mislead. Government action that physically
appropriates property is no less a physical taking because
it arises from a regulation. That explains why we held that
an administrative reserve requirement compelling raisin
growers to physically set aside a percentage of their crop for
the government constituted a physical rather than a regu-
latory taking. Horne, 576 U. S., at 361. The essential ques-
tion is not, as the Ninth Circuit seemed to think, whether
Cite as: 594 U. S. ____ (2021) 7
Opinion of the Court
the government action at issue comes garbed as a regula-
tion (or statute, or ordinance, or miscellaneous decree). It
is whether the government has physically taken property
for itself or someone else—by whatever means—or has in-
stead restricted a property owner’s ability to use his own
property. See Tahoe-Sierra, 535 U. S., at 321–323. When-
ever a regulation results in a physical appropriation of
property, a per se taking has occurred, and Penn Central
has no place.
B
The access regulation appropriates a right to invade the
growers’ property and therefore constitutes a per se physi-
cal taking. The regulation grants union organizers a right
to physically enter and occupy the growers’ land for three
hours per day, 120 days per year. Rather than restraining
the growers’ use of their own property, the regulation ap-
propriates for the enjoyment of third parties the owners’
right to exclude.
The right to exclude is “one of the most treasured” rights
of property ownership. Loretto v. Teleprompter Manhattan
CATV Corp., 458 U. S. 419, 435 (1982). According to Black-
stone, the very idea of property entails “that sole and des-
potic dominion which one man claims and exercises over the
external things of the world, in total exclusion of the right
of any other individual in the universe.” 2 W. Blackstone,
Commentaries on the Laws of England 2 (1766). In less
exuberant terms, we have stated that the right to exclude
is “universally held to be a fundamental element of the
property right,” and is “one of the most essential sticks in
the bundle of rights that are commonly characterized as
property.” Kaiser Aetna v. United States, 444 U. S. 164,
176, 179–180 (1979); see Dolan v. City of Tigard, 512 U. S.
374, 384, 393 (1994); Nollan v. California Coastal Comm’n,
483 U. S. 825, 831 (1987); see also Merrill, Property and the
Right to Exclude, 77 Neb. L. Rev. 730 (1998) (calling the
8 CEDAR POINT NURSERY v. HASSID
Opinion of the Court
right to exclude the “sine qua non” of property).
Given the central importance to property ownership of
the right to exclude, it comes as little surprise that the
Court has long treated government-authorized physical in-
vasions as takings requiring just compensation. The Court
has often described the property interest taken as a servi-
tude or an easement.
For example, in United States v. Causby we held that the
invasion of private property by overflights effected a taking.
328 U. S. 256 (1946). The government frequently flew mil-
itary aircraft low over the Causby farm, grazing the
treetops and terrorizing the poultry. Id., at 259. The Court
observed that ownership of the land extended to airspace
that low, and that “invasions of it are in the same category
as invasions of the surface.” Id., at 265. Because the dam-
ages suffered by the Causbys “were the product of a direct
invasion of [their] domain,” we held that “a servitude has
been imposed upon the land.” Id., at 265–266, 267; see also
Portsmouth Harbor Land & Hotel Co. v. United States, 260
U. S. 327, 330 (1922) (government assertion of a right to fire
coastal defense guns across private property would consti-
tute a taking).
We similarly held that the appropriation of an easement
effected a taking in Kaiser Aetna v. United States. A real-
estate developer dredged a pond, converted it into a marina,
and connected it to a nearby bay and the ocean. 444 U. S.,
at 167. The government asserted that the developer could
not exclude the public from the marina because the pond
had become a navigable water. Id., at 168. We held that
the right to exclude “falls within [the] category of interests
that the Government cannot take without compensation.”
Id., at 180. After noting that “the imposition of the naviga-
tional servitude” would “result in an actual physical inva-
sion of the privately owned marina” by members of the pub-
lic, we cited Causby and Portsmouth for the proposition that
Cite as: 594 U. S. ____ (2021) 9
Opinion of the Court
“even if the Government physically invades only an ease-
ment in property, it must nonetheless pay just compensa-
tion.” 444 U. S., at 180.
In Loretto v. Teleprompter Manhattan CATV Corp., we
made clear that a permanent physical occupation consti-
tutes a per se taking regardless whether it results in only a
trivial economic loss. New York adopted a law requiring
landlords to allow cable companies to install equipment on
their properties. 458 U. S., at 423. Loretto alleged that the
installation of a ½-inch diameter cable and two 1½-cubic-
foot boxes on her roof caused a taking. Id., at 424. We
agreed, stating that where government action results in a
“permanent physical occupation of property, our cases uni-
formly have found a taking to the extent of the occupation,
without regard to whether the action achieves an important
public benefit or has only minimal economic impact on the
owner.” Id., at 434–435.
We reiterated that the appropriation of an easement con-
stitutes a physical taking in Nollan v. California Coastal
Commission. The Nollans sought a permit to build a larger
home on their beachfront lot. 483 U. S., at 828. The Cali-
fornia Coastal Commission issued the permit subject to the
condition that the Nollans grant the public an easement to
pass through their property along the beach. Ibid. As a
starting point to our analysis, we explained that, had the
Commission simply required the Nollans to grant the public
an easement across their property, “we have no doubt there
would have been a taking.” Id., at 831; see also Dolan, 512
U. S., at 384 (holding that compelled dedication of an ease-
ment for public use would constitute a taking).
More recently, in Horne v. Department of Agriculture, we
observed that “people still do not expect their property, real
or personal, to be actually occupied or taken away.” 576
U. S., at 361. The physical appropriation by the govern-
ment of the raisins in that case was a per se taking, even if
a regulatory limit with the same economic impact would not
10 CEDAR POINT NURSERY v. HASSID
Opinion of the Court
have been. Id., at 362; see supra, at 6. “The Constitution,”
we explained, “is concerned with means as well as ends.”
576 U. S., at 362.
The upshot of this line of precedent is that government-
authorized invasions of property—whether by plane, boat,
cable, or beachcomber—are physical takings requiring just
compensation. As in those cases, the government here has
appropriated a right of access to the growers’ property, al-
lowing union organizers to traverse it at will for three hours
a day, 120 days a year. The regulation appropriates a right
to physically invade the growers’ property—to literally
“take access,” as the regulation provides. Cal. Code Regs.,
tit. 8, §20900(e)(1)(C). It is therefore a per se physical tak-
ing under our precedents. Accordingly, the growers’ com-
plaint states a claim for an uncompensated taking in viola-
tion of the Fifth and Fourteenth Amendments.
C
The Ninth Circuit saw matters differently, as do the
Board and the dissent. In the decision below, the Ninth
Circuit took the view that the access regulation did not
qualify as a per se taking because, although it grants a right
to physically invade the growers’ property, it does not allow
for permanent and continuous access “24 hours a day, 365
days a year.” 923 F. 3d, at 532 (citing Nollan, 483 U. S., at
832). The dissent likewise concludes that the regulation
cannot amount to a per se taking because it allows “access
short of 365 days a year.” Post, at 11 (opinion of BREYER,
J.). That position is insupportable as a matter of precedent
and common sense. There is no reason the law should ana-
lyze an abrogation of the right to exclude in one manner if
it extends for 365 days, but in an entirely different manner
if it lasts for 364.
To begin with, we have held that a physical appropriation
is a taking whether it is permanent or temporary. Our
cases establish that “compensation is mandated when a
Cite as: 594 U. S. ____ (2021) 11
Opinion of the Court
leasehold is taken and the government occupies property
for its own purposes, even though that use is temporary.”
Tahoe-Sierra, 535 U. S., at 322 (citing General Motors
Corp., 323 U. S. 373; United States v. Petty Motor Co., 327
U. S. 372 (1946)). The duration of an appropriation—just
like the size of an appropriation, see Loretto, 458 U. S., at436–437—bears only on the amount of compensation. See
United States v. Dow, 357 U. S. 17, 26 (1958). For example,
after finding a taking by physical invasion, the Court in
Causby remanded the case to the lower court to determine
“whether the easement taken was temporary or perma-
nent,” in order to fix the compensation due. 328 U. S., at267–268.
To be sure, Loretto emphasized the heightened concerns
associated with “[t]he permanence and absolute exclusivity
of a physical occupation” in contrast to “temporary limita-
tions on the right to exclude,” and stated that “[n]ot every
physical invasion is a taking.” 458 U. S., at 435, n. 12; see
also id., at 432–435. The latter point is well taken, as we
will explain. But Nollan clarified that appropriation of a
right to physically invade property may constitute a taking
“even though no particular individual is permitted to sta-
tion himself permanently upon the premises.” 483 U. S., at
832.
Next, we have recognized that physical invasions consti-
tute takings even if they are intermittent as opposed to con-
tinuous. Causby held that overflights of private property
effected a taking, even though they occurred on only 4% of
takeoffs and 7% of landings at the nearby airport. 328
U. S., at 259. And while Nollan happened to involve a le-
gally continuous right of access, we have no doubt that the
Court would have reached the same conclusion if the ease-
ment demanded by the Commission had lasted for only 364
days per year. After all, the easement was hardly continu-
ous as a practical matter. As Justice Brennan observed in
12 CEDAR POINT NURSERY v. HASSID
Opinion of the Court
dissent, given the shifting tides, “public passage for a por-
tion of the year would either be impossible or would not oc-
cur on [the Nollans’] property.” 483 U. S., at 854. What
matters is not that the easement notionally ran round the
clock, but that the government had taken a right to physi-
cally invade the Nollans’ land. And when the government
physically takes an interest in property, it must pay for the
right to do so. See Horne, 576 U. S., at 357–358; Tahoe-
Sierra, 535 U. S., at 322. The fact that a right to take access
is exercised only from time to time does not make it any less
a physical taking.
Even the Board declines to defend the Ninth Circuit’s ab-
solutist stance. It prudently concedes that “a requirement
that landowners grant an easement otherwise identical to
the one in Nollan but limited to daylight hours, might very
well qualify as ‘a taking without regard to other factors that
a court might ordinarily examine.’ ” Brief for Respondents
25–26 (quoting Loretto, 458 U. S., at 432; citation and some
internal quotation marks omitted). But the access regula-
tion, it contends, nevertheless fails to qualify as a per se
taking because it “authorizes only limited and intermittent
access for a narrow purpose.” Brief for Respondents 26.
That position is little more defensible than the Ninth Cir-
cuit’s. The fact that the regulation grants access only to
union organizers and only for a limited time does not trans-
form it from a physical taking into a use restriction. Saying
that appropriation of a three hour per day, 120 day per year
right to invade the growers’ premises “does not constitute a
taking of a property interest but rather . . . a mere re-
striction on its use, is to use words in a manner that de-
prives them of all their ordinary meaning.” Nollan, 483
U. S., at 831 (citation and internal quotation marks omit-
ted).
The Board also takes issue with the growers’ premise
that the access regulation appropriates an easement. In
the Board’s estimation, the regulation does not exact a true
Cite as: 594 U. S. ____ (2021) 13
Opinion of the Court
easement in gross under California law because the access
right may not be transferred, does not burden any particu-
lar parcel of property, and may not be recorded. This, the
Board says, reinforces its conclusion that the regulation
does not take a constitutionally protected property interest
from the growers. The dissent agrees, suggesting that the
access right cannot effect a per se taking because it does not
require the growers to grant the union organizers an ease-
ment as defined by state property law. See post, at 4, 11.
These arguments misconstrue our physical takings doc-
trine. As a general matter, it is true that the property
rights protected by the Takings Clause are creatures of
state law. See Phillips v. Washington Legal Foundation,
524 U. S. 156, 164 (1998); Lucas v. South Carolina Coastal
Council, 505 U. S. 1003, 1030 (1992). But no one disputes
that, without the access regulation, the growers would have
had the right under California law to exclude union organ-
izers from their property. See Allred v. Harris, 14 Cal. App.
4th 1386, 1390, 18 Cal. Rptr. 2d 530, 533 (1993). And no
one disputes that the access regulation took that right from
them. The Board cannot absolve itself of takings liability
by appropriating the growers’ right to exclude in a form that
is a slight mismatch from state easement law. Under the
Constitution, property rights “cannot be so easily manipu-
lated.” Horne, 576 U. S., at 365 (internal quotation marks
omitted); see also Webb’s Fabulous Pharmacies, Inc. v.
Beckwith, 449 U. S. 155, 164 (1980) (“a State, by ipse dixit,
may not transform private property into public property
without compensation”).
Our decisions consistently reflect this intuitive approach.
We have recognized that the government can commit a
physical taking either by appropriating property through a
condemnation proceeding or by simply “enter[ing] into
physical possession of property without authority of a court
order.” Dow, 357 U. S., at 21; see also United States v.
14 CEDAR POINT NURSERY v. HASSID
Opinion of the Court
Clarke, 445 U. S. 253, 256–257, and n. 3 (1980). In the lat-
ter situation, the government’s intrusion does not vest it
with a property interest recognized by state law, such as a
fee simple or a leasehold. See Dow, 357 U. S., at 21. Yet
we recognize a physical taking all the same. See id., at 22.
Any other result would allow the government to appropri-
ate private property without just compensation so long as it
avoids formal condemnation. We have never tolerated that
outcome. See Pewee Coal Co., 341 U. S., at 116–117. For
much the same reason, in Portsmouth, Causby, and Loretto
we never paused to consider whether the physical invasions
at issue vested the intruders with formal easements accord-
ing to the nuances of state property law (nor do we see how
they could have). Instead, we followed our traditional rule:
Because the government appropriated a right to invade,
compensation was due. That same test governs here.
The Board and the dissent further contend that our deci-
sion in PruneYard Shopping Center v. Robins, 447 U. S. 74(1980), establishes that the access regulation cannot qualify
as a per se taking. There the California Supreme Court
held that the State Constitution protected the right to en-
gage in leafleting at the PruneYard, a privately owned
shopping center. Id., at 78. The shopping center argued
that the decision had taken without just compensation its
right to exclude. Id., at 82. Applying the Penn Central fac-
tors, we held that no compensable taking had occurred. 447
U. S., at 83; cf. Heart of Atlanta Motel, Inc. v. United States,
379 U. S. 241, 261 (1964) (rejecting claim that provisions of
the Civil Rights Act of 1964 prohibiting racial discrimina-
tion in public accommodations effected a taking).
The Board and the dissent argue that PruneYard shows
that limited rights of access to private property should be
evaluated as regulatory rather than per se takings. See
post, at 8–9. We disagree. Unlike the growers’ properties,
the PruneYard was open to the public, welcoming some
25,000 patrons a day. 447 U. S., at 77–78. Limitations on
Cite as: 594 U. S. ____ (2021) 15
Opinion of the Court
how a business generally open to the public may treat indi-
viduals on the premises are readily distinguishable from
regulations granting a right to invade property closed to the
public. See Horne, 576 U. S., at 364 (distinguishing Prune-
Yard as involving “an already publicly accessible” busi-
ness); Nollan, 483 U. S., at 832, n. 1 (same).
The Board also relies on our decision in NLRB v. Babcock
& Wilcox Co. But that reliance is misplaced. In Babcock,
the National Labor Relations Board found that several em-
ployers had committed unfair labor practices under the Na-
tional Labor Relations Act by preventing union organizers
from distributing literature on company property. 351
U. S., at 109. We held that the statute did not require em-
ployers to allow organizers onto their property, at least out-
side the unusual circumstance where their employees were
otherwise “beyond the reach of reasonable union efforts to
communicate with them.” Id., at 113; see also Lechmere,
502 U. S., at 540 (employees residing off company property
are presumptively not beyond the reach of the union’s mes-
sage). The Board contends that Babcock’s approach of bal-
ancing property and organizational rights should guide our
analysis here. See Loretto, 458 U. S., at 434, n. 11 (discuss-
ing Babcock principle). But Babcock did not involve a tak-
ings claim. Whatever specific takings issues may be pre-
sented by the highly contingent access right we recognized
under the NLRA, California’s access regulation effects a
per se physical taking under our precedents. See Tahoe-Si-
erra, 535 U. S., at 322.
D
In its thoughtful opinion, the dissent advances a distinc-
tive view of property rights. The dissent encourages read-
ers to consider the issue “through the lens of ordinary Eng-
lish,” and contends that, so viewed, the “regulation does not
appropriate anything.” Post, at 3, 5. Rather, the access reg-
ulation merely “regulates . . . the owners’ right to exclude,”
16 CEDAR POINT NURSERY v. HASSID
Opinion of the Court
so it must be assessed “under Penn Central’s fact-intensive
test.” Post, at 2, 5. “A right to enter my woods only on cer-
tain occasions,” the dissent elaborates, “is a taking only if
the regulation allowing it goes ‘too far.’ ” Post, at 11. The
dissent contends that our decisions in Causby, Portsmouth,
and Kaiser Aetna applied just such a flexible approach, un-
der which the Court “balanced several factors” to determine
whether the physical invasions at issue effected a taking.
Post, at 9–11. According to the dissent, this kind of latitude
toward temporary invasions is a practical necessity for gov-
erning in our complex modern world. See post, at 11–12.
With respect, our own understanding of the role of prop-
erty rights in our constitutional order is markedly different.
In “ordinary English” “appropriation” means “taking as
one’s own,” 1 Oxford English Dictionary 587 (2d ed. 1989)
(emphasis added), and the regulation expressly grants to
labor organizers the “right to take access,” Cal. Code Regs.,
tit. 8, §20900(e)(1)(C) (emphasis added). We cannot agree
that the right to exclude is an empty formality, subject to
modification at the government’s pleasure. On the con-
trary, it is a “fundamental element of the property right,”
Kaiser Aetna, 444 U. S., at 179–180, that cannot be bal-
anced away. Our cases establish that appropriations of a
right to invade are per se physical takings, not use re-
strictions subject to Penn Central: “[W]hen [government]
planes use private airspace to approach a government air-
port, [the government] is required to pay for that share no
matter how small.” Tahoe-Sierra, 535 U. S., at 322 (citing
Causby). And while Kaiser Aetna may have referred to the
test from Penn Central, see 444 U. S., at 174–175, the Court
concluded categorically that the government must pay just
compensation for physical invasions, see id., at 180 (citing
Causby and Portsmouth). With regard to the complexities
of modern society, we think they only reinforce the im-
portance of safeguarding the basic property rights that help
preserve individual liberty, as the Founders explained. See
Cite as: 594 U. S. ____ (2021) 17
Opinion of the Court
supra, at 5.
In the end, the dissent’s permissive approach to property
rights hearkens back to views expressed (in dissent) for dec-
ades. See, e.g., Nollan, 483 U. S., at 864 (Brennan, J., dis-
senting) (“[The Court’s] reasoning is hardly suited to the
complex reality of natural resource protection in the 20th
century.”); Loretto, 458 U. S., at 455 (Blackmun, J., dissent-
ing) (“[T]oday’s decision . . . represents an archaic judicial
response to a modern social problem.”); Causby, 328 U. S.,
at 275 (Black, J., dissenting) (“Today’s opinion is, I fear, an
opening wedge for an unwarranted judicial interference
with the power of Congress to develop solutions for new and
vital national problems.”). As for today’s considered dis-
sent, it concludes with “Better the devil we know . . . ,” post,
at 16, but its objections, to borrow from then-Justice
Rehnquist’s invocation of Wordsworth, “bear[ ] the sound of
‘Old, unhappy, far-off things, and battles long ago,’ ” Kaiser
Aetna, 444 U. S., at 177.
III
The Board, seconded by the dissent, warns that treating
the access regulation as a per se physical taking will endan-
ger a host of state and federal government activities involv-
ing entry onto private property. See post, at 11–14. That
fear is unfounded.
First, our holding does nothing to efface the distinction
between trespass and takings. Isolated physical invasions,
not undertaken pursuant to a granted right of access, are
properly assessed as individual torts rather than appropri-
ations of a property right. This basic distinction is firmly
grounded in our precedent. See Portsmouth, 260 U. S., at329–330 (“[W]hile a single act may not be enough, a contin-
uance of them in sufficient number and for a sufficient time
may prove [the intent to take property]. Every successive
trespass adds to the force of the evidence.”); 1 P. Nichols,
The Law of Eminent Domain §112, p. 311 (1917) (“[A] mere
18 CEDAR POINT NURSERY v. HASSID
Opinion of the Court
occasional trespass would not constitute a taking.”). And
lower courts have had little trouble applying it. See, e.g.,
Hendler v. United States, 952 F. 2d 1364, 1377 (CA Fed.
1991) (identifying a “truckdriver parking on someone’s va-
cant land to eat lunch” as an example of a mere trespass).
The distinction between trespass and takings accounts
for our treatment of temporary government-induced flood-
ing in Arkansas Game and Fish Commission v. United
States, 568 U. S. 23 (2012). There we held, “simply and
only,” that such flooding “gains no automatic exemption
from Takings Clause inspection.” Id., at 38. Because this
type of flooding can present complex questions of causation,
we instructed lower courts evaluating takings claims based
on temporary flooding to consider a range of factors includ-
ing the duration of the invasion, the degree to which it was
intended or foreseeable, and the character of the land at is-
sue. Id., at 38–39. Applying those factors on remand, the
Federal Circuit concluded that the government had effected
a taking in the form of a temporary flowage easement. Ar-
kansas Game and Fish Comm’n v. United States, 736 F. 3d
1364, 1372 (2013). Our approach in Arkansas Game and
Fish Commission reflects nothing more than an application
of the traditional trespass-versus-takings distinction to the
unique considerations that accompany temporary flooding.
Second, many government-authorized physical invasions
will not amount to takings because they are consistent with
longstanding background restrictions on property rights.
As we explained in Lucas v. South Carolina Coastal Coun-
cil, the government does not take a property interest when
it merely asserts a “pre-existing limitation upon the land
owner’s title.” 505 U. S., at 1028–1029. For example, the
government owes a landowner no compensation for requir-
ing him to abate a nuisance on his property, because he
never had a right to engage in the nuisance in the first
place. See id., at 1029–1030.
These background limitations also encompass traditional
Cite as: 594 U. S. ____ (2021) 19
Opinion of the Court
common law privileges to access private property. One such
privilege allowed individuals to enter property in the event
of public or private necessity. See Restatement (Second) of
Torts §196 (1964) (entry to avert an imminent public disas-
ter); §197 (entry to avert serious harm to a person, land, or
chattels); cf. Lucas, 505 U. S., at 1029, n. 16. The common
law also recognized a privilege to enter property to effect an
arrest or enforce the criminal law under certain circum-
stances. Restatement (Second) of Torts §§204–205. Be-
cause a property owner traditionally had no right to exclude
an official engaged in a reasonable search, see, e.g., Sand-
ford v. Nichols, 13 Mass. 286, 288 (1816), government
searches that are consistent with the Fourth Amendment
and state law cannot be said to take any property right from
landowners. See generally Camara v. Municipal Court of
City and County of San Francisco, 387 U. S. 523, 538
(1967).
Third, the government may require property owners to
cede a right of access as a condition of receiving certain ben-
efits, without causing a taking. In Nollan, we held that “a
permit condition that serves the same legitimate police-
power purpose as a refusal to issue the permit should not
be found to be a taking if the refusal to issue the permit
would not constitute a taking.” 483 U. S., at 836. The in-
quiry, we later explained, is whether the permit condition
bears an “essential nexus” and “rough proportionality” to
the impact of the proposed use of the property. Dolan, 512
U. S., at 386, 391; see also Koontz v. St. Johns River Water
Management Dist., 570 U. S. 595, 599 (2013).
Under this framework, government health and safety in-
spection regimes will generally not constitute takings. See,
e.g., Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1007
(1984). When the government conditions the grant of a ben-
efit such as a permit, license, or registration on allowing
access for reasonable health and safety inspections, both
the nexus and rough proportionality requirements of the
20 CEDAR POINT NURSERY v. HASSID
Opinion of the Court
constitutional conditions framework should not be difficult
to satisfy. See, e.g., 7 U. S. C. §136g(a)(1)(A) (pesticide in-
spections); 16 U. S. C. §823b(a) (hydroelectric project inves-
tigations); 21 U. S. C. §374(a)(1) (pharmaceutical inspec-
tions); 42 U. S. C. §2201(o) (nuclear material inspections).
None of these considerations undermine our determina-
tion that the access regulation here gives rise to a per se
physical taking. Unlike a mere trespass, the regulation
grants a formal entitlement to physically invade the grow-
ers’ land. Unlike a law enforcement search, no traditional
background principle of property law requires the growers
to admit union organizers onto their premises. And unlike
standard health and safety inspections, the access regula-
tion is not germane to any benefit provided to agricultural
employers or any risk posed to the public. See Horne, 576
U. S., at 366 (“basic and familiar uses of property” are not
a special benefit that “the Government may hold hostage,
to be ransomed by the waiver of constitutional protection”).
The access regulation amounts to simple appropriation of
private property.
* * *
The access regulation grants labor organizations a right
to invade the growers’ property. It therefore constitutes a
per se physical taking.
The judgment of the United States Court of Appeals for
the Ninth Circuit is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
Cite as: 594 U. S. ____ (2021) 1
KAVANAUGH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–107
_________________
CEDAR POINT NURSERY, ET AL., PETITIONERS v.
VICTORIA HASSID, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 23, 2021]
JUSTICE KAVANAUGH, concurring.
I join the Court’s opinion, which carefully adheres to con-
stitutional text, history, and precedent. I write separately
to explain that, in my view, the Court’s precedent in NLRB
v. Babcock & Wilcox Co., 351 U. S. 105 (1956), also strongly
supports today’s decision.
In Babcock, the National Labor Relations Board argued
that the National Labor Relations Act afforded union or-
ganizers a right to enter company property to communicate
with employees. Several employers responded that the
Board’s reading of the Act would infringe their Fifth
Amendment property rights. The employers contended
that Congress, “even if it could constitutionally do so, has
at no time shown any intention of destroying property
rights secured by the Fifth Amendment, in protecting em-
ployees’ rights of collective bargaining under the Act. Until
Congress should evidence such intention by specific legisla-
tive language, our courts should not construe the Act on
such dangerous constitutional grounds.” Brief for Respond-
ent in NLRB v. Babcock & Wilcox Co., O. T. 1955, No. 250,
pp. 18–19.
This Court agreed with the employers’ argument that the
Act should be interpreted to avoid unconstitutionality. The
Court reasoned that “the National Government” via the
Constitution “preserves property rights,” including “the
2 CEDAR POINT NURSERY v. HASSID
KAVANAUGH, J., concurring
right to exclude from property.” Babcock, 351 U. S., at 112.
Against the backdrop of the Constitution’s strong protection
of property rights, the Court interpreted the Act to afford
access to union organizers only when “needed,” ibid.—that
is, when the employees live on company property and union
organizers have no other reasonable means of communi-
cating with the employees, id., at 113. See also Lechmere,
Inc. v. NLRB, 502 U. S. 527, 540–541 (1992). As I read it,
Babcock recognized that employers have a basic Fifth
Amendment right to exclude from their private property,
subject to a “necessity” exception similar to that noted by
the Court today. Ante, at 19.
Babcock strongly supports the growers’ position in to-
day’s case because the California union access regulation
intrudes on the growers’ property rights far more than Bab-
cock allows. When this same California union access regu-
lation was challenged on constitutional grounds before the
California Supreme Court in 1976, that court upheld the
regulation by a 4-to-3 vote. Agricultural Labor Rel. Bd. v.
Superior Ct. of Tulare Cty., 16 Cal. 3d 392, 546 P. 2d 687.
Justice William Clark wrote the dissent. Justice Clark
stressed that “property rights are fundamental.” Id., at
429, n. 4, 546 P. 2d, at 712, n. 4. And he concluded that the
California union access regulation “violates the rule” of
Babcock and thus “violates the constitutional provisions
protecting private property.” 16 Cal. 3d, at 431, 546 P. 2d,
at 713. In my view, Justice Clark had it exactly right.
With those comments, I join the Court’s opinion in full.
Cite as: 594 U. S. ____ (2021) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–107
_________________
CEDAR POINT NURSERY, ET AL., PETITIONERS v.
VICTORIA HASSID, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 23, 2021]
JUSTICE BREYER, with whom JUSTICE SOTOMAYOR and
JUSTICE KAGAN join, dissenting.
A California regulation provides that representatives of
a labor organization may enter an agricultural employer’s
property for purposes of union organizing. They may do so
during four months of the year, one hour before the start of
work, one hour during an employee lunch break, and one
hour after work. The question before us is how to charac-
terize this regulation for purposes of the Constitution’s Tak-
ings Clause.
Does the regulation physically appropriate the employ-
ers’ property? If so, there is no need to look further; the
Government must pay the employers “just compensation.”
U. S. Const., Amdt. 5; see Arkansas Game and Fish
Comm’n v. United States, 568 U. S. 23, 31 (2012) (“ ‘[W]hen
the government physically takes possession of an interest
in property for some public purpose, it has a categorical
duty to compensate the former owner’ ”). Or does the regu-
lation simply regulate the employers’ property rights? If so,
then there is every need to look further; the government
need pay the employers “just compensation” only if the reg-
ulation “goes too far.” Pennsylvania Coal Co. v. Mahon, 260
U. S. 393, 415 (1922) (Holmes, J., for the Court); see also
Penn Central Transp. Co. v. New York City, 438 U. S. 104,
124 (1978) (determining whether a regulation is a taking by
2 CEDAR POINT NURSERY v. HASSID
BREYER, J., dissenting
examining the regulation’s “economic impact,” the extent of
interference with “investment-backed expectations,” and
the “character of the governmental action”); Arkansas
Game and Fish Comm’n, 568 U. S., at 38–39 (listing factors
relevant to the character of the regulation).
The Court holds that the provision’s “access to organiz-
ers” requirement amounts to a physical appropriation of
property. In its view, virtually every government-author-
ized invasion is an “appropriation.” But this regulation
does not “appropriate” anything; it regulates the employers’
right to exclude others. At the same time, our prior cases
make clear that the regulation before us allows only a tem-
porary invasion of a landowner’s property and that this
kind of temporary invasion amounts to a taking only if it
goes “too far.” See, e.g., Loretto v. Teleprompter Manhattan
CATV Corp., 458 U. S. 419, 434 (1982). In my view, the
majority’s conclusion threatens to make many ordinary
forms of regulation unusually complex or impractical. And
though the majority attempts to create exceptions to nar-
row its rule, see ante, at 17–20, the law’s need for feasibility
suggests that the majority’s framework is wrong. With re-
spect, I dissent from the majority’s conclusion that the reg-
ulation is a per se taking.
I
“In view of the nearly infinite variety of ways in which
government actions or regulations can affect property inter-
ests, the Court has recognized few invariable rules in this
area.” Arkansas Game and Fish Comm’n, 568 U. S., at 31;
see also Kaiser Aetna v. United States, 444 U. S. 164, 175
(1979) (“[T]his Court has generally ‘been unable to develop
any “set formula” for determining when “justice and fair-
ness” require that economic injuries caused by public action
be compensated by the government’ ”). Instead, most gov-
ernment action affecting property rights is analyzed case by
case under Penn Central’s fact-intensive test. Petitioners
Cite as: 594 U. S. ____ (2021) 3
BREYER, J., dissenting
do not argue that the provision at issue is a “regulatory tak-
ing” under that test.
Instead, the question before us is whether the access reg-
ulation falls within one of two narrow categories of govern-
ment conduct that are per se takings. The first is when “ ‘the
government directly appropriates private property for its
own use.’ ” Horne v. Department of Agriculture, 576 U. S.
351, 357 (2015). The second is when the government causes
a permanent physical occupation of private property. See
Lingle v. Chevron U. S. A. Inc., 544 U. S. 528, 538 (2005).
It does not.
A
Initially it may help to look at the legal problem—a prob-
lem of characterization—through the lens of ordinary Eng-
lish. The word “regulation” rather than “appropriation” fits
this provision in both label and substance. Cf. ante, at 6. It
is contained in Title 8 of the California Code of Regulations.
It was adopted by a state regulatory board, namely, the Cal-
ifornia Agricultural Labor Relations Board, in 1975. It is
embedded in a set of related detailed regulations that de-
scribe and limit the access at issue. In addition to the hours
of access just mentioned, it provides that union representa-
tives can enter the property only “for the purpose of meeting
and talking with employees and soliciting their support”;
they have access only to “areas in which employees congre-
gate before and after working” or “at such location or loca-
tions as the employees eat their lunch”; and they cannot en-
gage in “conduct disruptive of the employer’s property or
agricultural operations, including injury to crops or ma-
chinery or interference with the process of boarding buses.”
§§20900(e), (e)(3), (e)(4)(C) (2021). From the employers’
perspective, it restricts when and where they can exclude
others from their property.
At the same time, the provision only awkwardly fits the
terms “physical taking” and “physical appropriation.” The
4 CEDAR POINT NURSERY v. HASSID
BREYER, J., dissenting
“access” that it grants union organizers does not amount to
any traditional property interest in land. It does not, for
example, take from the employers, or provide to the organ-
izers, any freehold estate (e.g., a fee simple, fee tail, or life
estate); any concurrent estate (e.g., a joint tenancy, tenancy
in common, or tenancy by the entirety); or any leasehold es-
tate (e.g., a term of years, periodic tenancy, or tenancy at
will). See J. Dukeminier, J. Krier, G. Alexander, M. Schill,
& L. Strahilevitz, Property 215–216, 222–224, 226, 343–
345, 443–445 (8th ed. 2014). Nor (as all now agree) does it
provide the organizers with a formal easement or access re-
sembling an easement, as the employers once argued, since
it does not burden any particular parcel of property. See,
e.g., Balestra v. Button, 54 Cal. App. 2d 192, 197 (1942) (the
burden of an easement in gross is appurtenant to “the real
property of another”); Restatement (Third) of Property: Ser-
vitudes §1.2(3) (1998) (“The burden of an easement or profit
is always appurtenant”); see also ante, at 13 (acknowledg-
ing a “slight mismatch from state easement law”). Compare
Pet. for Cert. i (asking the Court to address “whether the
uncompensated appropriation of an easement that is lim-
ited in time effects a per se physical taking under the Fifth
Amendment”), with Reply Brief 8 (“[T]he access required
here does not bear all the hallmarks of an easement”).
The majority concludes that the regulation nonetheless
amounts to a physical taking of property because, the ma-
jority says, it “appropriates” a “right to invade” or a “right
to exclude” others. See ante, at 7, 12, 14, 15, 16, 20 (right
to invade); ante, at 7, 8, 10, 13, 16 (right to exclude). It
thereby likens this case to cases in which we have held that
appropriation of property rights amounts to a physical
per se taking. See ante, at 5–6 (citing United States v. Pe-
wee Coal Co., 341 U. S. 114, 115 (1951) (plurality opinion)
(seizure and operation of a coal mine by the United States);
United States v. General Motors Corp., 323 U. S. 373, 375
(1945) (condemnation of a warehouse building by the
Cite as: 594 U. S. ____ (2021) 5
BREYER, J., dissenting
United States); Horne, 576 U. S., at 361 (transfer of
“[a]ctual raisins,” and title to the raisins, from growers to
the Government)).
It is important to understand, however, that, technically
speaking, the majority is wrong. The regulation does not
appropriate anything. It does not take from the owners a
right to invade (whatever that might mean). It does not
give the union organizations the right to exclude anyone. It
does not give the government the right to exclude anyone.
What does it do? It gives union organizers the right tempo-
rarily to invade a portion of the property owners’ land. It
thereby limits the landowners’ right to exclude certain oth-
ers. The regulation regulates (but does not appropriate) the
owners’ right to exclude.
Why is it important to understand this technical point?
Because only then can we understand the issue before us.
That issue is whether a regulation that temporarily limits
an owner’s right to exclude others from property automati-
cally amounts to a Fifth Amendment taking. Under our
cases, it does not.
B
Our cases draw a distinction between regulations that
provide permanent rights of access and regulations that
provide nonpermanent rights of access. They either state
or hold that the first type of regulation is a taking per se,
but the second kind is a taking only if it goes “too far.” And
they make this distinction for good reason.
Consider the Court’s reasoning in an important case in
which the Court found a per se taking. In Loretto, the Court
considered the status of a New York law that required land-
lords to permit cable television companies to install cable
facilities on their property. 458 U. S., at 421. We held that
the installation amounted to a permanent physical occupa-
tion of the property and hence to a per se taking. See id., at
441 (“affirm[ing] the traditional rule that a permanent
6 CEDAR POINT NURSERY v. HASSID
BREYER, J., dissenting
physical occupation of property is a taking”); see also id., at
427 (tracing that rule back to 1872). In reaching this hold-
ing we specifically said that “[n]ot every physical invasion
is a taking.” Id., at 435, n. 12 (emphasis deleted); see also
ante, at 11 (acknowledging that this “point is well taken”).
We explained that the “permanence and absolute exclusiv-
ity of a physical occupation distinguish it from temporary
limitations on the right to exclude.” Loretto, 458 U. S., at
435, n. 12. And we provided an example of a federal statute
that did not effect a per se taking—an example almost iden-
tical to the regulation before us. That statute provided “ ‘ac-
cess . . . limited to (i) union organizers; (ii) prescribed non-
working areas of the employer’s premises; and (iii) the du-
ration of the organization activity.’ ” Id., at 434, n. 11 (quot-
ing Central Hardware Co. v. NLRB, 407 U. S. 539, 545
(1972)).
We also explained why permanent physical occupations
are distinct from temporary limitations on the right to ex-
clude. We said that, when the government permanently oc-
cupies property, it “does not simply take a single ‘strand’
from the ‘bundle’ of property rights: it chops through the
bundle, taking a slice of every strand,” “effectively de-
stroy[ing]” “the rights ‘to possess, use and dispose of it.’ ”
Loretto, 458 U. S., at 435. We added that the property
owner “ha[d] no right to possess the occupied space himself,
and also ha[d] no power to exclude the occupier from pos-
session and use of the space.” Ibid. The requirement “for-
ever denie[d] the owner any power to control the use of the
property” or make any “nonpossessory use” of it. Id., at 436.
It would “ordinarily empty the right” to sell or transfer the
occupied space “of any value, since the purchaser w[ould]
also be unable to make any use of the property.” Ibid. The
owner could not “exercise control” over the equipment’s in-
stallation, and so could not “minimize [its] physical, es-
thetic, and other effects.” Id., at 441, n. 19. Thus, we con-
cluded, a permanent physical occupation “is perhaps the
Cite as: 594 U. S. ____ (2021) 7
BREYER, J., dissenting
most serious form of invasion of an owner’s property inter-
ests.” Id., at 435.
Now consider PruneYard Shopping Center v. Robins, 447
U. S. 74 (1980). We there considered the status of a state
constitutional requirement that a privately owned shop-
ping center permit other individuals to enter upon, and to
use, the property to exercise their rights to free speech and
petition. See id., at 78. We held that this requirement was
not a per se taking in part because (even though the indi-
viduals may have “ ‘physically invaded’ ” the owner’s prop-
erty) “[t]here [wa]s nothing to suggest that preventing [the
owner] from prohibiting this sort of activity w[ould] unrea-
sonably impair the value or use of th[e ] property as a shop-
ping center,” and the owner could “adop[t ] time, place, and
manner regulations that w[ould] minimize any interference
with its commercial functions.” Id., at 83–84; see also
Loretto, 458 U. S., at 434 (describing the “invasion” in
PruneYard as “temporary and limited in nature”).
In Nollan v. California Coastal Comm’n, 483 U. S. 825(1987), we held that the State’s taking of an easement
across a landowner’s property did constitute a per se taking.
But consider the Court’s reason: “[I]ndividuals are given a
permanent and continuous right to pass to and fro.” Id., at
832 (emphasis added). We clarified that by “permanent”
and “continuous” we meant that the “real property may con-
tinuously be traversed, even though no particular individ-
ual is permitted to station himself permanently upon the
premises.” Ibid.In Arkansas Game and Fish Comm’n, 568 U. S. 23, we
again said that permanent physical occupations are per se
takings, but temporary invasions are not. Rather, they
“ ‘are subject to a more complex balancing process to deter-
mine whether they are a taking.’ ” Id., at 36; see also id., at
38–39 (courts should consider the length of the invasion,
the “degree to which the invasion is intended or is the fore-
8 CEDAR POINT NURSERY v. HASSID
BREYER, J., dissenting
seeable result of authorized government action,” “the char-
acter of the land at issue,” “the owner’s ‘reasonable invest-
ment-backed expectations’ regarding the land’s use,” and
the “[s]everity of the interference” (citing, inter alia, Penn
Central, 438 U. S., at 130–131)).
As these cases have used the terms, the regulation here
at issue provides access that is “temporary,” not “perma-
nent.” Unlike the regulation in Loretto, it does not place a
“fixed structure on land or real property.” 458 U. S., at 437.
The employers are not “forever denie[d]” “any power to con-
trol the use” of any particular portion of their property. Id.,
at 436. And it does not totally reduce the value of any sec-
tion of the property. Ibid. Unlike in Nollan, the public can-
not walk over the land whenever it wishes; rather a subset
of the public may enter a portion of the land three hours per
day for four months per year (about 4% of the time). At
bottom, the regulation here, unlike the regulations in
Loretto and Nollan, is not “functionally equivalent to the
classic taking in which government directly appropriates
private property or ousts the owner from his domain.”
Lingle, 544 U. S., at 539.
At the same time, PruneYard’s holding that the taking
was “temporary” (and hence not a per se taking) fits this
case almost perfectly. There the regulation gave non-
owners the right to enter privately owned property for the
purpose of speaking generally to others, about matters of
their choice, subject to reasonable time, place, and manner
restrictions. 447 U. S., at 83. The regulation before us
grants a far smaller group of people the right to enter land-
owners’ property for far more limited times in order to
speak about a specific subject. Employers have more power
to control entry by setting work hours, lunch hours, and
places of gathering. On the other hand, as the majority
notes, the shopping center in PruneYard was open to the
public generally. See ante, at 14–15. All these factors, how-
Cite as: 594 U. S. ____ (2021) 9
BREYER, J., dissenting
ever, are the stuff of which regulatory-balancing, not abso-
lute per se, rules are made.
Our cases have recognized, as the majority says, that the
right to exclude is a “ ‘fundamental element of the property
right.’ ” Ante, at 16. For that reason, “[a] ‘taking’ may more
readily be found when the interference with property can
be characterized as a physical invasion by government.”
Penn Central, 438 U. S., at 124 (emphasis added); see also
Loretto, 458 U. S., at 426 (“[W]e have long considered a
physical intrusion by government to be a property re-
striction of an unusually serious character for purposes of
the Takings Clause”). But a taking is not inevitably found
just because the interference with property can be charac-
terized as a physical invasion by the government, or, in
other words, when it affects the right to exclude.
The majority refers to other cases. But those cases do not
help its cause. That is because the Court in those cases
(some of which preceded Penn Central and others of which
I have discussed above) did not apply a “per se takings” ap-
proach. But see ante, at 14 (claiming that our “traditional
rule” is that when “the government appropriate[s] a right
to invade, compensation [i]s due”). In United States v.
Causby, 328 U. S. 256, 259 (1946), for example, the question
was whether government flights over a piece of land consti-
tuted a taking. The flights amounted to 4% of the takeoffs,
and 7% of the landings, at a nearby airport. See ibid. But
the planes flew “in considerable numbers and rather close
together.” Ibid. And the flights were “so low and so fre-
quent as to be a direct and immediate interference with the
enjoyment and use of the land.” Id., at 266. Taken to-
gether, those flights “destr[oyed] the use of the property as
a commercial chicken farm.” Id., at 259. Based in part on
that economic damage, the Court found that the rule allow-
ing these overflights went “too far.” See id., at 266 (“ ‘[I]t is
the character of the invasion, not the amount of damage re-
sulting from it, so long as the damage is substantial, that
10 CEDAR POINT NURSERY v. HASSID
BREYER, J., dissenting
determines the question whether it is a taking’ ” (emphasis
added)).
In Portsmouth Harbor Land & Hotel Co. v. United States,
260 U. S. 327, 329 (1922), the Court held that the Govern-
ment’s firing of guns across private property would be a tak-
ing only if the shots were sufficiently frequent to establish
an “intent to fire across the claimants’ land at will.” The
frequency of the projectiles itself mattered less than
whether the Government acted “ ‘with the purpose and ef-
fect of subordinating the strip of land . . . to the right and
privilege of the Government to fire projectiles directly
across it for the purpose of practice or otherwise, whenever
it saw fit, in time of peace, with the result of depriving the
owner of its profitable use.’ ” Ibid. (emphasis added).
Again, the Court balanced several factors—permanence, se-
verity, and economic impact—rather than treating the
mere fact of entry as dispositive.
In Kaiser Aetna v. United States, 444 U. S. 164, the Court
considered whether the Government had taken property by
converting a formerly “private pond” (with a private access
fee) into a “public aquatic park” (with free navigation-re-
lated access for the public). Id., at 176, 180. The Court held
there was a taking. But in doing so, it applied a Penn Cen-
tral, not a per se, analysis. The Court wrote that “[m]ore
than one factor contribute[d] to” the conclusion that the
Government had gone “far beyond ordinary regulation or
improvement.” 444 U. S., at 178. And it found there was a
taking.
If there is ambiguity in these cases, it concerns whether
the Court considered the occupation at issue to be tempo-
rary (requiring Penn Central’s “too far” analysis) or perma-
nent (automatically requiring compensation). Nothing in
them suggests the majority’s view, namely, that compensa-
tion is automatically required for a temporary right of ac-
cess. Nor does anything in them support the distinction
that the majority gleans between “trespass” and “takings.”
Cite as: 594 U. S. ____ (2021) 11
BREYER, J., dissenting
See ante, at 17–18; see also infra, at 14.
The majority also refers to Nollan as support for its claim
that the “fact that a right to take access is exercised only
from time to time does not make it any less a physical tak-
ing.” Ante, at 12. True. Here, however, unlike in Nollan,
the right taken is not a right to have access to the property
at any time (which access different persons “exercis[e] . . .
from time to time”). Rather here we have a right that does
not allow access at any time. It allows access only from
“time to time.” And that makes all the difference. A right
to enter my woods whenever you wish is a right to use that
property permanently, even if you exercise that right only
on occasion. A right to enter my woods only on certain oc-
casions is not a right to use the woods permanently. In the
first case one might reasonably use the term per se taking.
It is as if my woods are yours. In the second case it is a
taking only if the regulation allowing it goes “too far,” con-
sidering the factors we have laid out in Penn Central. That
is what our cases say.
Finally, the majority says that Nollan would have come
out the same way had it involved, similar to the regulation
here, access short of 365 days a year. See ante, at 11. Per-
haps so. But, if so, that likely would be because the Court
would have viewed the access as an “easement,” and there-
fore an appropriation. See Nollan, 483 U. S., at 828. Or,
perhaps, the Court would have viewed the regulation as go-
ing “too far.” I can assume, purely for argument’s sake, that
that is so. But the law is clear: A regulation that provides
temporary, not permanent, access to a landowner’s prop-
erty, and that does not amount to a taking of a traditional
property interest, is not a per se taking. That is, it does not
automatically require compensation. Rather, a court must
consider whether it goes “too far.”
C
The persistence of the permanent/temporary distinction
12 CEDAR POINT NURSERY v. HASSID
BREYER, J., dissenting
that I have described is not surprising. That distinction
serves an important purpose. We live together in
communities. (Approximately 80% of Americans live in
urban areas. U. S. Census Bureau, Urban Area Facts
(Mar. 30, 2021), https://www.census.gov/programs-surveys/
geography/guidance/geo-areas/urban-rural/ua-facts.html.)
Modern life in these communities requires different kinds
of regulation. Some, perhaps many, forms of regulation re-
quire access to private property (for government officials or
others) for different reasons and for varying periods of time.
Most such temporary-entry regulations do not go “too far.”
And it is impractical to compensate every property owner
for any brief use of their land. As we have frequently said,
“[g]overnment hardly could go on if to some extent values
incident to property could not be diminished without paying
for every such change in the general law.” Pennsylvania
Coal Co., 260 U. S., at 413; see also, e.g., Murr v. Wisconsin,
582 U. S. ___, ___–___ (2017) (slip op., at 8–9) (same);
Lingle, 544 U. S., at 538 (same); Tahoe-Sierra Preservation
Council, Inc. v. Tahoe Regional Planning Agency, 535 U. S.
302, 335 (2002) (same); Dolan v. City of Tigard, 512 U. S.
374, 384–385 (1994) (same); Lucas v. South Carolina
Coastal Council, 505 U. S. 1003, 1018 (1992) (same); An-
drus v. Allard, 444 U. S. 51, 65 (1979) (same); Penn Central,
438 U. S, at 124 (same). Thus, the law has not, and should
not, convert all temporary-access-permitting regulations
into per se takings automatically requiring compensation.
See, e.g., Hodel v. Irving, 481 U. S. 704, 713 (1987) (“This
Court has held that the Government has considerable lati-
tude in regulating property rights in ways that may ad-
versely affect the owners”).
Consider the large numbers of ordinary regulations in a
host of different fields that, for a variety of purposes, permit
temporary entry onto (or an “invasion of ”) a property
owner’s land. They include activities ranging from exami-
nation of food products to inspections for compliance with
Cite as: 594 U. S. ____ (2021) 13
BREYER, J., dissenting
preschool licensing requirements. See, e.g., 29 U. S. C.
§657(a) (authorizing inspections and investigations of
“any . . . workplace or environment where work is per-
formed” during “regular working hours and at other reason-
able times”); 21 U. S. C. §606(a) (authorizing “examination
and inspection of all meat food products . . . at all times, by
day or night”); 42 U. S. C. §5413(b) (authorizing inspections
anywhere “manufactured homes are manufactured, stored,
or held for sale” at “reasonable times and without advance
notice”); Miss. Code Ann. §49–27–63 (2012) (authorizing in-
spections of “coastal wetlands” “from time to time”); Mich.
Comp. Laws §208.1435(5) (2010) (authorizing inspections of
any “historic resource” “at any time during the rehabilita-
tion process”); Mont. Code Ann. §81–22–304 (2019) (grant-
ing a “right of entry . . . [into] any premises where dairy
products . . . are produced, manufactured, [or] sold” “during
normal business hours”); Neb. Rev. Stat. §43–1303(5)
(2016) (authorizing visitation of “foster care facilities in or-
der to ascertain whether the individual physical, psycholog-
ical, and sociological needs of each foster child are being
met”); Va. Code Ann. §22.1–289.032(C)(8) (Cum. Supp.
2020) (authorizing “annual inspection” of “preschool pro-
grams of accredited private schools”); Cincinnati, Ohio, Mu-
nicipal Code §603–1 (2021) (authorizing entry “at any time”
for any place in which “animals are slaughtered”); Dallas,
Tex., Code of Ordinance §33–5(a) (2021) (authorizing in-
spection of “assisted living facilit[ies]” “at reasonable
times”); 6 N. Y. Rules & Regs. §360.7 (Supp. 2020) (author-
izing inspection of solid waste management facilities “at all
reasonable times, locations, whether announced or unan-
nounced”); see also Boise Cascade Corp. v. United States,
296 F. 3d 1339, 1352 (CA Fed. 2002) (affirming an injunc-
tion requiring property owner to allow Government agents
to enter its property to conduct owl surveys); Brief for Re-
spondents 43–44, 46 (collecting similar regulations); App.
to Brief for Local Governments as Amici Curiae 1–13
14 CEDAR POINT NURSERY v. HASSID
BREYER, J., dissenting
(same); Brief for Virginia et al. as Amici Curiae 3–6 (same).
The majority tries to deal with the adverse impact of
treating these, and other, temporary invasions as if they
were per se physical takings by creating a series of excep-
tions from its per se rule. It says: (1) “Isolated physical in-
vasions, not undertaken pursuant to a granted right of ac-
cess, are properly assessed as individual torts rather than
appropriations of a property right.” Ante, at 17. It also
would except from its per se rule (2) government access that
is “consistent with longstanding background restrictions on
property rights,” including “traditional common law privi-
leges to access private property.” Ante, at 18–19. And it
adds that (3) “the government may require property owners
to cede a right of access as a condition of receiving certain
benefits, without causing a taking.” Ante, at 19. How well
will this new system work? I suspect that the majority has
substituted a new, complex legal scheme for a compara-
tively simpler old one.
As to the first exception, what will count as “isolated”?
How is an “isolated physical invasion” different from a
“temporary” invasion, sufficient under present law to in-
voke Penn Central? And where should one draw the line
between trespass and takings? Imagine a school bus that
stops to allow public school children to picnic on private
land. Do three stops a year place the stops outside the ex-
ception? One stop every week? Buses from one school?
From every school? Under current law a court would know
what question to ask. The stops are temporary; no one as-
sumes a permanent right to stop; thus the court will ask
whether the school district has gone “too far.” Under the
majority’s approach, the court must answer a new question
(apparently about what counts as “isolated”).
As to the second exception, a court must focus on “tradi-
tional common law privileges to access private property.”
Just what are they? We have said before that the govern-
Cite as: 594 U. S. ____ (2021) 15
BREYER, J., dissenting
ment can, without paying compensation, impose a limita-
tion on land that “inhere[s] in the title itself, in the re-
strictions that background principles of the State’s law of
property and nuisance already place upon land ownership.”
Lucas, 505 U. S., at 1029. But we defined a very narrow set
of such background principles. See ibid., and n. 16 (abate-
ment of nuisances and cases of “ ‘actual necessity’ ” or “to
forestall other grave threats to the lives and property of oth-
ers”). To these the majority adds “public or private neces-
sity,” the enforcement of criminal law “under certain cir-
cumstances,” and reasonable searches. Ante, at 19. Do only
those exceptions that existed in, say, 1789 count? Should
courts apply those privileges as they existed at that time,
when there were no union organizers? Or do we bring some
exceptions (but not others) up to date, e.g., a necessity ex-
ception for preserving animal habitats?
As to the third, what is the scope of the phrase “certain
benefits”? Does it include the benefit of being able to sell
meat labeled “inspected” in interstate commerce? But see
Horne, 576 U. S., at 366 (concluding that “[s]elling produce
in interstate commerce” is “not a special governmental ben-
efit”). What about the benefit of having electricity? Of sew-
age collection? Of internet accessibility? Myriad regulatory
schemes based on just these sorts of benefits depend upon
intermittent, temporary government entry onto private
property.
Labor peace (brought about through union organizing) is
one such benefit, at least in the view of elected representa-
tives. They wrote laws that led to rules governing the or-
ganizing of agricultural workers. Many of them may well
have believed that union organizing brings with it “bene-
fits,” including community health and educational benefits,
higher standards of living, and (as I just said) labor peace.
See, e.g., 1975 Cal. Stats. ch. 1, §1 (stating that the purpose
of the Agricultural Labor Relations Act was to “ensure
peace in the agricultural fields by guaranteeing justice for
16 CEDAR POINT NURSERY v. HASSID
BREYER, J., dissenting
all agricultural workers and stability in labor relations”). A
landowner, of course, may deny the existence of these ben-
efits, but a landowner might do the same were a regulatory
statute to permit brief access to verify proper preservation
of wetlands or the habitat enjoyed by an endangered species
or, for that matter, the safety of inspected meat. So, if a
regulation authorizing temporary access for purposes of or-
ganizing agricultural workers falls outside of the Court’s
exceptions and is a per se taking, then to what other forms
of regulation does the Court’s per se conclusion also apply?
II
Finally, I touch briefly on remedies, which the majority
does not address. The Takings Clause prohibits the Gov-
ernment from taking private property for public use with-
out “just compensation.” U. S. Const., Amdt. 5. But the
employers do not seek compensation. They seek only in-
junctive and declaratory relief. Indeed, they did not allege
any damages. See App. to Pet. for Cert. G–16 to G–17. On
remand, California should have the choice of foreclosing in-
junctive relief by providing compensation. See, e.g., Knick
v. Township of Scott, 588 U. S. __, __ (2019) (slip op., at 23)
(“As long as just compensation remedies are available—as
they have been for nearly 150 years—injunctive relief will
be foreclosed”).
* * *
I recognize that the Court’s prior cases in this area are
not easy to apply. Moreover, words such as “temporary,”
“permanent,” or “too far” do not define themselves. But I do
not believe that the Court has made matters clearer or bet-
ter. Rather than adopt a new broad rule and indeterminate
exceptions, I would stick with the approach that I believe
the Court’s case law sets forth. “Better the devil we
know . . . .” A right of access such as the right at issue here, a
nonpermanent right, is not automatically a “taking.” It is
Cite as: 594 U. S. ____ (2021) 17
BREYER, J., dissenting
a regulation that falls within the scope of Penn Central. Be-
cause the Court takes a different view, I respectfully dis-
sent.