In Cedar Point Nursery v. Hassid (decided June 23, 2021) the Supreme Court decided that a regulation that required agricultural employers to allow union representatives to access their property for up to 3 hours per day for 120 days per year, was a per se taking, reversing a 9th Circuit decision that held this regulation to be merely regulation. The Court reasoned that a fundamental component of property ownership is the right to exclude others and the state, through this regulation, had taken that property right away from the owners and must therefore compensate the owner for the taking.

The Court explained that taking an easement is clearly taking a property right that requires compensation and this “regulation” is no less invasive. A state cannot, the Court reasoned, acquire virtually the same interest by different means (i.e. by regulation) and avoid the requirement of payment.

The dissent argued that the Court’s decision was a threat to virtually all government regulation that affects private property and the Court devoted a significant amount of time explaining why that was not the case. Indeed, the distinction between taking and regulation can be found more in the Court’s response to the dissent than in its affirmative reasoning. The Court gave three reasons that its decision was not a threat to all regulation of private property. First, the Court explained that the distinction between trespass and taking remains unchanged and most government activities on private property would be a temporary trespass and not a taking that requires compensation.

Second, the Court reasoned that many government invasions of private property are consistent with traditional restrictions on property rights. For example, the government can require a property owner to abate a nuisance because the property owner never had the right to create the nuisance. Government entry on private property to prevent harm to people and to investigate crimes falls into this category.

Third, the Court explained that the government can require a right of access as a condition to receiving government benefits with causing a taking. Thus, those regulations whereby the government grants a permit to engage in certain activities and takes a right of access as a permit condition are not threatened.

In sum, while the distinction between taking and regulation may be difficult to define, the Court provided a detailed explanation of why most regulation that affects private property is not threatened by this decision.