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, Washington,
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															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 physical 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 interfere 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 talking with employees and
soliciting their support.” Cal. Code Regs., tit. 8, §20900(e).
Under the regulation, a labor organization 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 organization 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 employer’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). Interference 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 notice. 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 unfair labor
practice.

															Fowler Packing Company is a Fresno-based grower
and shipper of table grapes and citrus. It has 1,800 to 2,500
employees in its field operations and around 500 in its packing
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 members in
their official capacity. The growers argued that the access
regulation effected an unconstitutional per se physical
taking under the Fifth and Fourteenth Amendments by appropriating
without compensation an easement for union organizers to enter
their property. They requested declaratory and injunctive relief
prohibiting the Board from enforcing the regulation against
them.

															The District Court denied the growers’ motion
for a preliminary injunction and granted the Board’s motion to
dismiss. The court rejected the growers’ argument that the access
regulation constituted a per se physical taking,
reasoning that it did not “allow the public to access their
property 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 evaluation 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 Circuit affirmed. The court identified three categories of
regulatory actions in takings jurisprudence: regulations that
impose permanent physical invasions, regulations that deprive an
owner of all economically beneficial use of his property, 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 regulation did
not fall into the first category because it did not “allow random
members of the public to unpredictably traverse [the growers’]
property 24 hours a day, 365 days a year.” Id. , at 532. And
given that the growers did not contend that the regulation deprived
them of all economically beneficial use of their property, per se treatment was inappropriate. Id. , at 531,
534.

															Judge Leavy dissented. He observed that this
Court had never allowed labor organizers to enter an employer’s
property 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
traditional 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 concluded, constituted a per se physical taking under the precedents of this
Court. Id. , at 1168.

															We granted certiorari. 592 U. S. ___
(2020).

															II

															A

															The Takings Clause of the Fifth Amendment,
applicable to the States through the Fourteenth Amendment,
provides: “[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 freedom” 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
property 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 flooding as a result of building a dam. See United
States v. Cress , 243 U.S.
316 , 327–328 (1917). These sorts of physical appropriations
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.

															When the government, rather than appropriating
private property for itself or a third party, instead imposes
regulations that restrict an owner’s ability to use his own
property, a different standard applies. Id. , at 321–322. Our
jurisprudence 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 regulation
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 Realty
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 developed in Penn Central , balancing factors such as
the economic impact of the regulation, its interference with
reasonable 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 regulatory taking. Horne , 576 U. S., at 361. The essential question is
not, as the Ninth Circuit seemed to think, whether the government
action at issue comes garbed as a regulation (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 instead restricted a property owner’s ability
to use his own property. See Tahoe-Sierra , 535 U. S.,
at 321–323. Whenever 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 physical 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 appropriates
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 Blackstone, the very idea of
property entails “that sole and despotic 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 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 invasions
as takings requiring just compensation. The Court has often
described the property interest taken as a servitude 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 military 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 damages 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 constitute 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 navigational servitude”
would “result in an actual physical invasion of the privately owned
marina” by members of the public, we cited Causby and Portsmouth for the proposition that “even if the Government
physically invades only an easement in property, it must
nonetheless pay just compensation.” 444 U. S., at 180.

															In Loretto v. Teleprompter Manhattan
CATV Corp. , we made clear that a permanent physical occupation
constitutes 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 uniformly 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 constitutes 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 California 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 easement 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
government of the raisins in that case was a per se taking, even if a regulatory limit with the same economic impact
would not 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, allowing
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 taking under our
precedents. Accordingly, the growers’ complaint states a claim for
an uncompensated taking in violation 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 analyze 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 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., at
436–437—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
permanent,” in order to fix the compensation due. 328 U. S.,
at 267–268.

															To be sure, Loretto emphasized the
heightened concerns associated with “[t]he permanence and absolute
exclusivity of a physical occupation” in contrast to “temporary
limitations 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 station himself permanently upon the premises.” 483
U. S., at 832.

															Next, we have recognized that physical invasions
constitute takings even if they are intermittent as opposed to
continuous. 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 legally continuous
right of access, we have no doubt that the Court would have reached
the same conclusion if the easement demanded by the Commission had
lasted for only 364 days per year. After all, the easement was
hardly continuous as a practical matter. As Justice Brennan
observed in dissent, given the shifting tides, “public passage for
a portion of the year would either be impossible or would not occur
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 physically 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 absolutist 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 regulation,
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 Circuit’s. The fact that the
regulation grants access only to union organizers and only for a
limited time does not transform 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 restriction on its use, is to use words in a
manner that deprives them of all their ordinary meaning.” Nollan , 483 U. S., at 831 (citation and internal
quotation marks omitted).

															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 easement
in gross under California law because the access right may not be
transferred, does not burden any particular 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 easement as defined by state property law. See post , at 4, 11.

															These arguments misconstrue our physical takings
doctrine. 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 organizers 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 manipulated.” 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. Clarke , 445 U.S.
253 , 256–257, and n. 3 (1980). In the latter 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 appropriate 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 according 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 decision 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 engage 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 factors, 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 discrimination 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 how a business generally open to the public
may treat individuals 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 PruneYard as involving “an already publicly accessible”
business); 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 employers had committed unfair labor practices
under the National 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
employers to allow organizers onto their property, at least outside
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 message). The
Board contends that Babcock ’s approach of balancing property
and organizational rights should guide our analysis here. See Loretto , 458 U. S., at 434, n. 11 (discussing Babcock principle). But Babcock did not involve a
takings claim. Whatever specific takings issues may be presented 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-Sierra , 535
U. S., at 322.

															D

															In its thoughtful opinion, the dissent advances
a distinctive view of property rights. The dissent encourages
readers to consider the issue “through the lens of ordinary
English,” and contends that, so viewed, the “regulation does not appropriate anything.” Post , at 3, 5. Rather, the
access regulation merely “ regulates . . . the
owners’ right to exclude,” so it must be assessed “under Penn
Central ’s fact-intensive test.” Post , at 2, 5. “A right
to enter my woods only on certain 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, under 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 governing in our complex
modern world. See post , at 11–12.

															With respect, our own understanding of the role
of property 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 contrary, it is a
“fundamental element of the property right,” Kaiser Aetna ,
444 U. S., at 179–180, that cannot be balanced away. Our cases
establish that appropriations of a right to invade are per se physical takings, not use restrictions subject
to Penn Central : “[W]hen [government] planes use private
airspace to approach a government airport, [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
importance of safeguarding the basic property rights that help
preserve individual liberty, as the Founders explained. See supra , at 5.

															In the end, the dissent’s permissive approach to
property rights hearkens back to views expressed (in dissent) for
decades. See, e.g. , Nollan , 483 U. S., at 864
(Brennan, J., dissenting) (“[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., dissenting) (“[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 dissent, 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 endanger a host of state and federal government
activities involving 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
appropriations of a property right. This basic distinction is
firmly grounded in our precedent. See Portsmouth , 260
U. S., at 329–330 (“[W]hile a single act may not be enough, a
continuance 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 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 vacant 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 flooding
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 including the duration of the invasion, the degree
to which it was intended or foreseeable, and the character of the
land at issue. 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. Arkansas 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 Council , 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 requiring 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 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 disaster); §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 circumstances.
Restatement (Second) of Torts §§204–205. Because a property owner
traditionally had no right to exclude an official engaged in a
reasonable search, see, e.g. , Sandford 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 benefits, 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 inquiry, 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 inspection 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
benefit 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 constitutional
conditions framework should not be difficult to satisfy. See, e.g. , 7 U. S. C. §136g(a)(1)(A) (pesticide
inspections); 16 U. S. C. §823b(a) (hydroelectric project
investigations); 21 U. S. C. §374(a)(1) (pharmaceutical
inspections); 42 U. S. C. §2201( o ) (nuclear
material inspections). None of these considerations undermine our
determination 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
growers’ 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 regulation 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. 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 constitutional 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
organizers 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 employees’ rights of collective bargaining under the
Act. Until Congress should evidence such intention by specific
legislative language, our courts should not construe the Act on
such dangerous constitutional grounds.” Brief for Respondent 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 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 communicating 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 today’s case because the California union access
regulation intrudes on the growers’ property rights far more than Babcock allows. When this same California union access
regulation 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. 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 characterize this regulation
for purposes of the Constitution’s Takings Clause.

															Does the regulation physically
appropriate the employers’ 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 regulation 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
regulation “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 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
organizers” requirement amounts to a physical appropriation of
property. In its view, virtually every government-authorized
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 temporary 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 narrow its rule, see ante , at 17–20, the law’s
need for feasibility suggests that the majority’s framework is
wrong. With respect, I dissent from the majority’s conclusion that
the regulation is a per se taking.

															I

															“In view of the nearly infinite variety of
ways in which government actions or regulations can affect property
interests, 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
fairness” require that economic injuries caused by public action be
compensated by the government’ ”). Instead, most government
action affecting property rights is analyzed case by case under Penn Central ’s fact-intensive test. Petitioners do not argue
that the provision at issue is a “regulatory taking” under that
test.

															Instead, the question before us is whether the
access regulation falls within one of two narrow categories of
government 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 problem of characterization—through the lens of ordinary
English. 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 California
Agricultural Labor Relations Board, in 1975. It is embedded in a
set of related detailed regulations that describe and limit the
access at issue. In addition to the hours of access just mentioned,
it provides that union representatives 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 congregate before and after working” or “at such location
or locations as the employees eat their lunch”; and they cannot
engage in “conduct disruptive of the employer’s property or
agricultural operations, including injury to crops or machinery 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
“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 organizers, 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 estate ( 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 resembling 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: Servitudes §1.2(3) (1998) (“The
burden of an easement or profit is always appurtenant”); see also ante , at 13 (acknowledging 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 limited 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
majority 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. Pewee 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
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 temporarily to invade a portion of
the property owners’ land. It thereby limits the landowners’ right
to exclude certain others. 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 automatically 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 landlords 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
occupation of the property and hence to a per se taking. See id., at 441 (“affirm[ing] the traditional rule that a
permanent physical occupation of property is a taking”); see also id. , at 427 (tracing that rule back to 1872). In reaching
this holding 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 exclusivity 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 identical to the regulation before us. That statute
provided “ ‘access . . . limited to (i) union
organizers; (ii) prescribed non-working areas of the employer’s
premises; and (iii) the duration of the organization
activity.’ ” Id. , at 434, n. 11 (quoting 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
exclude. We said that, when the government permanently occupies
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 destroy[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 possession and use of the
space.” Ibid. The requirement “forever 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 installation, and so could not
“minimize [its] physical, esthetic, and other effects.” Id. ,
at 441, n. 19. Thus, we concluded, a permanent physical occupation
“is perhaps the most serious form of invasion of an owner’s
property interests.” 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 shopping 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 individuals may have
“ ‘physically invaded’ ” the owner’s property) “[t]here
[wa]s nothing to suggest that preventing [the owner] from
prohibiting this sort of activity w[ould] unreasonably impair the
value or use of th[e ] property as a shopping 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
continuously be traversed, even though no particular individual 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
determine 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
foreseeable result of authorized government action,” “the character
of the land at issue,” “the owner’s ‘reasonable investment-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
“permanent.” 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
control the use” of any particular portion of their property. Id. , at 436. And it does not totally reduce the value of any
section of the property. Ibid. Unlike in Nollan , the
public cannot 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 landowners’ 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,
however, are the stuff of which regulatory-balancing, not absolute 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
restriction 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 characterized 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” approach. 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 constituted 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 frequent as to be a direct and
immediate interference with the enjoyment and use of the land.” Id. , at 266. Taken together, 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 allowing these overflights went “too far.” See id., at 266 (“ ‘[I]t is the character of the invasion, not the amount of
damage resulting from it, so long as the damage is
substantial , that 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 Government’s firing of
guns across private property would be a taking 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 effect 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, severity, 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-related access for the public). Id. , at 176, 180.
The Court held there was a taking. But in doing so, it applied a Penn Central, 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 temporary (requiring Penn Central ’s “too far”
analysis) or permanent (automatically requiring
compensation). Nothing in them suggests the majority’s view,
namely, that compensation is automatically required for a temporary right of access. Nor does anything in them support
the distinction that the majority gleans between “trespass” and
“takings.” 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 taking.” 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 occasions 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,” considering 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. Perhaps so. But, if so, that likely would be because the
Court would have viewed the access as an “easement,” and therefore
an appropriation. See Nollan , 483 U. S., at 828. Or,
perhaps, the Court would have viewed the regulation as going “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 property, 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 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 require 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); Andrus 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 latitude in regulating property rights in ways that
may adversely 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
examination of food products to inspections for compliance with
preschool licensing requirements. See, e.g. , 29
U. S. C. §657(a) (authorizing inspections and
investigations of “any . . . workplace or
environment where work is performed” during “regular working hours
and at other reasonable 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 inspections 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 rehabilitation process”); Mont. Code Ann. §81–22–304
(2019) (granting 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 order to ascertain whether the individual physical,
psychological, 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 programs of
accredited private schools”); Cincinnati, Ohio, Municipal 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 inspection of “assisted living
facilit[ies]” “at reasonable times”); 6 N. Y. Rules &
Regs. §360.7 (Supp. 2020) (authorizing inspection of solid waste
management facilities “at all reasonable times, locations, whether
announced or unannounced”); see also Boise Cascade Corp. v. United States , 296 F.3d 1339 , 1352 (CA Fed. 2002) (affirming an injunction
requiring property owner to allow Government agents to enter its
property to conduct owl surveys); Brief for Respondents 43–44, 46
(collecting similar regulations); App. to Brief for Local
Governments as Amici Curiae 1–13 (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
exceptions from its per se rule. It says: (1) “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.” 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 privileges 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 comparatively 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 invoke 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 exception? 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
assumes 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 “traditional common law privileges to access private property.”
Just what are they? We have said before that the government can,
without paying compensation, impose a limitation on land that
“inhere[s] in the title itself, in the restrictions 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 (abatement of nuisances and cases of
“ ‘actual necessity’ ” or “to forestall other grave
threats to the lives and property of others”). To these the
majority adds “public or private necessity,” the enforcement of
criminal law “under certain circumstances,” 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 exception 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
benefit”). What about the benefit of having electricity? Of sewage
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
representatives. They wrote laws that led to rules governing the
organizing of agricultural workers. Many of them may well have
believed that union organizing brings with it “benefits,” 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 all agricultural workers and stability
in labor relations”). A landowner, of course, may deny the
existence of these benefits, 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 organizing
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
Government from taking private property for public use without
“just compensation.” U. S. Const., Amdt. 5. But the employers
do not seek compensation. They seek only injunctive 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 injunctive 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
better. 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
a regulation that falls within the scope of Penn Central .
Because the Court takes a different view, I respectfully
dissent.

Summary: The Supreme Court ruled that a California regulation allowing union organizers to access agricultural employers' property to solicit support for unionization constitutes a per se physical taking under the Fifth and Fourteenth Amendments. This means that the government must provide just compensation to the landowners for the temporary occupation of their land. The case has broader implications for regulatory schemes that involve intermittent and temporary government access to private property.