A year ago, a divided panel of the Ninth Circuit ruled (in Cedar Point Nursery v. Shiroma) that a California regulation that requires an agricultural employer to give union organizers access to agricultural employees at employer worksites does not constitute an unconstitutional taking. In an order today, the Ninth Circuit denied the employer’s petition for rehearing en banc.
Eight judges publicly dissented from the denial. Here is the powerful opening paragraph of Judge Sandra S. Ikuta’s dissent (some citations omitted):
Once again, the Ninth Circuit endorses the taking of property without just compensation. See Horne v. U.S. Dep’t of Agric., 750 F.3d 1128 (9th Cir. 2014), rev’d sub nom. Horne v. Dep’t of Agric., 135 S. Ct. 2419 (2015). California property law and Supreme Court precedent make clear that an easement is private property protected by the Takings Clause. In opposition to this precedent, the majority concludes there is no taking because the state’s appropriation of an easement is not a “permanent physical occupation.” This decision not only contradicts Supreme Court precedent but also causes a circuit split. We should have taken this case en banc so that the Supreme Court will not have to correct us again.