rebuttal your honour's the access regulation allows union organizers to solicit agricultural workers on the growers property for one hundred twenty days per year for three hours per day because those union third party beachgoers what have been an unconstitutional taking of the nolan's property as relevant here the court explained that it could conduct the takings in corrie using the bright line rule set in the physical takings cases of the supreme court articulated in cases like libretto and nolan and horne rather than resorting to and ad hoc multi factor balancing test set forth by the supreme court in cases like penn central this was this was so because in nolan like this case involved a perpetual easement for the benefit of the third part of a third party and like this case nolan  that the easement was perpetual because it there was no end date in sight even though no particular beachgoer was going to be himself or herself permanently situated  that's the nature of amusement the passage right right exactly and you know in this case that they the union organizers though they're not on the growers property twenty four seven their their wall come to be on the growers property by filing a notice of intent at any time during the year as long as it doesn't exceed one hundred twenty days for the year and the following year they can start that process over again  involves union organizers physically intruding on the growers property this isn't some sort of restriction on you say a law that requires the growers to not use g m o as or to discern a way for the growers to harvest their crops this is actually a law that requires physical presence of people that the growers would rather exclude on their private business on the union's property and and if someone can go onto your property and there is nothing you can do you can resort to anything in the law to stop them from being on your property i think it's safe to assume that they have some interest on that proper in that property respect you judge lectures time place and manner comments i think the time and manner as we cite in footnote three of our reply brief time and manner time place and manner restrictions are quite common features of easements for example you can have an easement that allowed for a church a parking spot in the church during church hours in fact california code i believe it's eight zero one subsection sixteen allows an easement for a church so i think in that circumstance time place and manner restrictions are quite common features of easements and i think any time place any limited duration of the easemen would go to the nature of the remedy rather than change whether there has been an easement taken in the first place all i also like to mention something about pruning yard which the respondents cite quite often in their reply brief as the supreme court articulated later in the olden and especially in the horn prune yard isn't about the main distinction improving art isn't about the to ration of the easement rather it's about how whether the  place whether the nature of the property is a place of public accommodation or not and you know the takings inquiry focuses on state common law and at state common law historically it was places like ins or taverns these days it's places like hotels or restaurants or shopping malls like prune yard the right to exclude is just fundamentally different in places of public accommodation but as we mention in our reply brief in the all red case places that are only open for the employer or their employees or perhaps even specify clientele are certainly not places a public accommodation and do not fall under the places of public accommodation exception of for example to use one analogy if the a b a wanted to solicit members the american bar association wanted to solicit members at a mall that would certainly be much different if they were allowed to go into private law firms and solicit members there now we also the growers also as we allege in our complaint the access regulation also violates the court's prohibition on or the constitution's prohibition on unreasonable seizures now there are two steps in the seizure inquiry one is whether the access regulation facilitates  step asks whether that seizure is reasonable or unreasonable what respect to the first step i think this case would certainly be an easy case if it were decided in the fourth circuit because you have the fourth circuit opinion of pressley versus city of charlottesville and i think the same logic applies here in the ninth circuit and pressley the fourth circuit recognise that a map which allowed third party trespassers  enter private property was or worked and cognizable seizure in this case is even worse in some ways because rather than the government just failing to correct the map this case involves the intentional grant of third party union organizers on to the growers private property so i think this case is it is consistent in every constitutionally significant way with the four circuits analysis in pressley which means that there is a cognizable seizure here now the second step in the inquiry is whether a seizure is are reasonable and the reasonableness balance focuses on the growers possessory rights and the union's right in taking access on the growers property and i have two major points to make with respect to the reasonable miss balance one as a district court noted in a foot no the it is presumed that a warrantless that a warrantless invasion on a property is a reasonable so we have the they don't come on to the growers land will warrant so i think they're there you have your presumption of a reasonable and second actually performing the balancing test i think you have you know the growers as we alleged in our complain and also in our declarations submitted in conjunction with the plumber injunction motion in addition to the kind of the the struction of the growers right to exclude you also have things like contamination of  food interests and worker safety and goodwill that the growers lose by having these third party union organizers take access on the growers property now what's respect for the unions interest in taking access to the property the growers actually have no problem with the union talking to the workers it's where they talk to the workers that matter and as noted in the supreme court's case and leach near there are plenty of alternative forms of communication by which union organizers can reach these employees and inform them of the benefits and the cost of union organizing and for example as we submitted in our complaint all of our this isn't the case and from say the one nine hundred twenty s or even the one nine hundred sixty s and which most of the growers employees live on site this is a case in which as we've alleged in the excerpts of record i believe page want to weigh in one hundred nine which includes or complaint that all of the growers employees at either cedar point at both cedar point and are live in houses or hotels whether they be in the fresno area or near the oregon border and many of the growers employees have cell phones or smartphones and all of them converse can converse in spanish or english though the the board's allegations about indigenous language remember this isn't as applied challenge there are allegations about indigenous languages just do not apply here and i guess one final point i would like to make if if there are no further questions is that the the growers this cases like leishman are in many ways the you and a leech where they don't have things like cell phones or smart phones or anything like that but here are the growers many of their employees have smartphones and cell phones they live off site which is the most critical part and the final point i would like to make to that that is acts like the n r a and the r a as the court said and leach mir is primarily focused on the employees and the rights of non employee union organizers are only derivative of that right and by the board's own evidence that they submitted into the supplemental excerpts of record they said that the hour before work which is when the union workers took access the cedar point is particularly bad for the employees because the employees are getting in position to work and furthermore many far more injuries testified at those board meetings cited in the supplemental record excerpts of record i believe that page six and page twenty one that the that  as we look at is what was alleged in the complaint yes and we certainly do allege in the complaint that the growers employees all live off site which is the most important thing and we all like that in the complaint at paragraph twenty seven i believe it was for cedar point and paragraph thirty seven for fowler and they certainly don't properly the all the information that was provided to the district court in connection with the motion for injunctions really  what list it's alleged in the complaint is really not before right i mean i think they elaborate on what we allege in the complaint and those are that's the sort of evidence that we would proffer if this case were remained and we had the opportunity to conduct discovery some meditational declarations and things like that but as alleged in the complaint i think we've alleged enough for the sea for the seizure point certainly for the takings point and also for the seizure point because we allege that the workers live off site and things like they have alternative forms of communication in the in the complaint if there are no further questions your honor i'd like to reserve my time for about ok thank you thank may please the court matthew weiss deputy attorney general for the california agricultural labor relations board chair members and secretary the growers in their council asked this court to cast aside longstanding taking favor of a reconstruction of the law that privileges private property interests over all others for decades the supreme court has measured regulatory restrictions on property like the board's forty year old access regulation here under pen central's flexible multi factor balancing test but the growers suggest that any regulation that allows access to private property even a regulation with strict time place and manner limitations is a categorical per se taking and is even a seizure of property this court should reject those arguments and should uphold the district court's judgment dismissing the case first the growers argue that a categorical per se taking occurs any time a third party accesses private property that is not open to the public this despite the supreme court's recent observation in the arkansas game and fish commission case that categorical takings are rare and that most takings claims turn on situation specific factual inquiries the growers all or nothing approach of dismissing the penn central analysis even in the alternative aims to radically change taking and it is wrong on the law for decades the supreme court has measured regulatory restrictions on her pen centrals three factor balancing test to determine the character of the government action the economic impact of the regulation and any interference with a reasonable investment backed expectations to turning whether the access regulation is constitutional calls for this approach of weighing the nature of the access granted and any effects on the value and use of the property but the growers don't conduct this analysis indeed as the district court noted they don't even allege that the access regulation had any negative economic impact on them at all instead they insist that the taking that the regulation is a categorical physical taking a physical intrusion occupation or appropriation that is permanent and continuous they allege as the gross council just said that this is a case like loreto or like nolan loreto of course is the case where there is a cable t v receiver on top of an apartment building it was stationed there permanently continuously as the florida court said it effectively destroyed the possession use and disposal of the property nolan i think it's worth looking at those facts there's a public beach on one side of the property a public beach on the other side of the property and anyone at any time could walk right through the nolan's front yard and and again destroy that property so that was as the court in was a classic right of way easement that would have allowed the space to be continuously invaded here the regulation does not allow anyone at any time to access the property instead the regulation has strict time place and manner limitations and those limitations ensure that any access to the property is brief unobtrusive and does not interfere with the business operations on difference one way or the other to the analysis of the purpose behind the excess regulation here and the purpose and the beneficiaries of the use went in i mean what we have here is basically a government regulatory propose and in knowing what we have as a general proposition for the benefit of the public but is not regulatory  interference and if the specific purpose of the regulation and the purpose of the regulation is to allow workers to go to organizers to go on to the property to meet and talk with the workers and  solicit their support and if that purpose is carried out in an very narrow way so that it does not interfere with the growers property interests with their business operations it doesn't cause the them to lose any value or use of the property i think that's the focus here and their time place and manner limitations that ensure that that that that that occurs that there is a very limited entrance granted for for a very specific purpose so some of those limitations include that organizers must give written notice of the intent to enter onto the property they must identify themselves for the badge they can't overwhelm the property with with numbers they have to have only one organizer per fifteen workers they're only allowed you know contrary to this notion that they can just come on of the property for one hundred twenty days in a year in three to three hours you know that's aggregating the whole of the terms  in time the grower the organizers are only allowed on the property for one hour increment during non work periods before or after work or during the lunch hour the thirty day period can be shortened if obviously if an organizer go and goes onto the property and see any use in staying there because there's not going to be any sort of you know union that forms then that obviously they're going to leave but specific end of the regulation itself there is a provision that states that if there is an election and the ballots have been counted and the organizers have to leave the property within five days the regulation also specifies that no disruptive conduct maker and there are consequences written into the regulation if there is disruptive conduct specifically if the organizers engage in bad conduct and the growers want to file an unfair labor practice charge as was stated in the complaint cedar point did they they can do so they can also file a motion to deny access so that if a disruptive union has you know the growers don't want that union on the property again they can seek to bar that union from coming back so there are remedies in the regulation itself which which again goes to show that the regulations purpose is very specific it does not allow for  kind of activity that would interrupt the business the business operations of the grower and so on this narrow legal issue that's presented the growers have not shown that there is a categorical per se taking they waived any analysis under pence and as for this grower second argument that the regulation affects the seizure of their property there's little case law to support this theory the growers rely exclusively on the presley case but presley has a much different set of facts then than in this case and you know just to step back if every regulation where there was a takings claim were to be analyzed under the fourth cent fourth amendment analysis then all taking scase is could be swallowed by this this approach but the presley case has a completely different facts than this case that's a case where  and as is the court stated it a regular presence of an army of trespassers who would freely and regularly trev traverse the yard litter camp overnight destroy the property that's a pretty extreme set of circumstances in which the presley property was treated as if it was a public trail here as i just mentioned there are very specific time place and manner limitations that ensure that any presence on the property is not going to interfere with business operations and in fact as it was mentioned in the previous argument there there was there was no you know  the only allegation that was made about disruptive behavior was linked to really the interference of a violation of the regulation not  not a party that was not an organizer that was following the regulation so determining whether there is a meaningful interference is a context specific analysis in the grower suggest that any access to their radio to the property is a meaningful interference and were that the law no access regulation even one that is limited would be permitted that is obviously not the law the growers also discuss that the second prong of the analysis if there is a seizure that's found is that seizure unreasonable but i think it's worth noting again that there is no seizure here that the district court found that there was no meaningful interference so we don't even reach this question of whether there are alternative channels of communication in less there is a seizure found that the board clearly has a strong interest in this regulation it's written into the regulation itself it's written into the law that the regulation is implementing and there are two points in particular that the regulation states explicitly one that property interest while important must accommodate the right of unions to access workers and to that alternative channels of communication that are found adequate in industrial settings may not be adequate in an agricultural setting then the judicially noticed testimony that is in the supplemental excerpts of record and that was that that was judicial that was judicially notice by the district court as found in the supplemental acts were excerpts of record here is public testimony of hearings held by the board in two thousand and fifteen and that testimony confirms that the conditions that are present today  even though there have been technological advances are really the same conditions that were present in the seventy's specifically and as is the test under leach near the workers remain isolated from the information the flow of information that is characteristic of modern society these are workers that as foller concedes fifty one of their declarations fifty percent of the follower workers still don't have a cell phone so fifty percent may have a cell phone we don't know if it's a smartphone or not but clearly more than half of those workers do not have access to the internet so the notion that you know social media facebook is going to be an adequate way of getting a hold of these workers is flawed even cedar point acknowledges that a good number of their workers don't have cell phones so there is you know there is a specific purpose to this regulation to ensure that these transients non native english speakers who have less exposure to technology than the rest of the population can be reached these are strong interests and they outweigh the growers possessory interests primarily because the interest that they have alleged or not deficiencies in the regulation itself as as i and they allege that that's a flaw in the regulation itself but if the con if the conduct was causing disruption the regulation specifically specifically prohibits the disruption it prohibits activities like coming onto the property and then giving notice coming out of the property while the workers are working so you know cedar point again has remedies that it can pursue and did pursue in that in that case they filed an unfair labor practice charge i want to dress one case to go back to the set of cases to go back to the takings analysis  because there were a few federal circuit cases that were addressed in briefing quite extensively by the by the growers and those are the handler and otay mesa cases and  those cases the growers suggests are a lot like this case because there was access that was allowed and court at the federal circuit found that  that access went over the line but in hendler and otay mesa there were fixed immovable objects on the property that were inseparable really from the access that was granted to be able to fix those objects so for example handler that's a case where there were wells that were one hundred feet deep they were lined in plastic and steel they were surrounded by a gravel and concrete and  mesa there were underground sensors to detect any immigrants that were crossing the border and so the maintenance workers that would come on to these properties to fix the wells or the sensors that entrance which apparently could occur at any time and in any number and could occur during business hours you know that that was a much different level of interference than we have here here obviously there is no there is no fixed immovable object and so there is a real distinction between those cases in this case and in fact the federal circuit itself recognized that there's a distinction in the boise cascade corporation case in which the federal circuit essentially limited handler to its facts it acknowledged that handler is a particularly special case because of the permanence of the object and the level of access that was that that was taken in that case if the court has any questions i'd be happy to address them no thank you thank you very much we are to the court to uphold the judgment dismissing the case thank you thank you you saved some time provision so to the extent that they didn't dispute it it was waived second if i were the opposing counsel vising the board on what to do i would say if it's true that temporarily limited evade the court's physical takings doctrine i would say just give them just given five days out of the year in which the union organizers cannot take access give them thanksgiving christmas and a few other days i think that rule would just allow the government to evade the physical takings doctrine and encourage what i would call pen central creep third as they noted there was a traditionally notice supplemental traditionally notice memo submitted into the supplemental excerpts of record and on page twenty three of that there was a concern because at that memo was talking about a proposed plan for board members to take access on to the growers property and what they said was any message on page twenty three they said any message that the board members would disseminate on the growers property needs to be subsidiary tailored to avoid the view that this is just union organization in disguise and if you want to if you want to further that interest surely it's not correct to allow union organizers and selves to themselves to take access on to the growers property further the present case is in a lot of ways actually less burdensome on the growers private property interests in this case because and presently all the government did was publish a map incorrectly and the present court actually noted that the property owners were free to call the police and inject the trespassers at any time so talk about time place and manner restrictions third party trespassers were not allowed on the press land at any time in any manner at any place and here the union the access for your lation clearly allows union organizers to go on to private property for one hundred twenty days for year for three hours per day  communication and we were talking about access regulations in general of course places of public accommodations are different and the government going in to execute a government purpose is different under the common law so it's simply not true that by striking down this particular access regulation you would invalidate many others as well because many others involve either place of public accommodation or the government going in to execute a warrant or two  to further some governmental interests my next point is that the regulation the regulation allows it's true that cedar point filed a labor charge against the union members for the incident in twenty fifteen but the regulation is what allows the union organizers to come onto the private property in the first place and i don't think it's a case that a that a failure to comply why was statutory a regulatory provisions what excuse one from violating the constitution and my final point is that the a r e itself as was noted in the briefing was enacted to ensure stability and clarity and the field of property rights and i think the way to do that is with the prior lying rule and articulated in the court's physical takings test of physical taking cases that a bright line rule that produces stability clarity and reliability for the property owners rather than an ad hoc multi factor test of penn central if there are no further questions we  substituting others what is the position of state on that you are your honour's i be happy to let the state talk about that but i believe under the federal rules we are suing someone in their official capacity there automatically substituted you may want to change the case caption professor gould i think as long since left the board for example absolutely i think your honor ok think think think both sides for their argument cedar point nursery for our packing company versus william b gould the fourth submitted for decision and we're now in adjournment now i know we have some students here we will go to a conference and when we're finished with the conference i think judge pious may have to leave but certainly judge levy and i will come back out and talk to you but in the meantime we've got some walk works we're happy to talk to you