enter occupy and use another private property affected per se physical taking under the th amendment any time limitations placed on access to go towards the just compensation do not whether a taking has occurred the access regulation issue in this case authorizes an easement on the property of petitioners for the benefit of union organizers under the terms of the access regulation organizers may occupy the businesses property pretty hours each day one hundred dollars days each year this court should hold at the taking of his easement violates the th amendment because of effect a physical taking without compensation and the court has sold for two reasons st the appropriation of a real property interest triggers a categorical duty to compensate the excess regulation authorizes the taking of a real property interest in the form of a continual right to occupy and use petitioners property and nd at a more fundamental level the access regulation denies petitioners the right to exclude union organizers from their property such infringement on the most fundamental property right merits per se treatment the th circuit however took a different tack demoted the right to exclude to just another stick in the bundle and would give per se treatment only to those rarities myths that authorized two hundred and forty seven occupation not even the board supports that extreme rule of the board offers no basis much less a principled one on which to distinguish access that merit per se treatment from those that don't if a government wants to take an active easement over private property it has to pay for it failure to pay just compensation violates  prevents constitutional limits on the extent to which the government can search but it does not affect one property right when the government undertake that howard well why doesn't that is fitting peaceful labor or promoting peaceful labor relations fall into the same category as safety inspections in other words it benefits the public interest to have limited access along those lines  and i also don't think this can be justified of a constitutional condition because the right to enter into agriculture the right to sell strawberry plants for example is not it is not a government benefit the board can hold a ransom in exchange for our fundamental that rather than under state law is recognized under common law mr justice thomas i don't think that whether this is a recognizable easement under state law for example whether it's  compensation here would be minimal however the court loretta would hold that even a minimal invasion of the right to food and even a minimal denial about right one american station of course the new york court of appeals and loretta of a one dollar compensation sufficient but or the right to the states action here was excessive is that right we do think it is violated our fundamental property right just as prior but i will you answer my question do you think it's excessive statutes which provide for example one brief tells us the mine safety and health act of nine hundred seventy seven dollars allows the secretary of labor to inspect the coal mine at least four times a year and i guess you could was trying to think of an example of people now have been fifteen years their own private space ships or their own electric cars or their own driverless cars and there's a law that says people can go in the inspectors the gas station if you keep your car without using it inside your property for ten years they want to go inspect as they have to do that because it might blow up they had no spaceships of common law i'm just trying to think of an example words the same idea they didn't have in common law just prior what matters is whether the government has the power to search a common law or not whether they are what they are searching sort of the government is using it straight property interest i understand the word say but that sounds like a conclusion what they cannot do is i mean they send someone out there as here to talk to workers to find out what the conditions are for example can they do that there's urging for conditions there searching to see whether they'd like to belong to a union they can't do that what's the difference the difference or the power of the government doing i could not do it on the law it has to compensate you such a fine or a searching to see if the electric car which they didn't have in common law is safe enough to take out on the highway and in determining that in her judgment there was a taking here of a property interest is not the proper approach do we look to how state law in two thousand and twenty one defines property interests under challenge or new law the impact on the right could you answer this question a little bit more simply is this a question of whether it's a property interest under california law today or is the question whether it  few percy rules in this area in arkansas again my late colleague justice ginsburg explained that there are nearly infinite ways they which government actions can affect property interests the court has recognized you in theory a pool rules in this area so given that why don't we just take the arkansas game theory or not the variables and apply them to this case why don't you win under that you're claiming and that's what the dissent said in the in the panel decision you're claiming yards even are concerned game which were invasions of the right to exclude all of those cases were identical to this one take in the bundle of rights only available to publicly acceptable and one question is your rule of applicable can we exempt your absolute this rule and say it applies to only situations in which government in which access is provided to someone who is not a government official or government agent or contractor and no i don't think that would make a difference here your honor i think what matters is the extent of the physical invasion authorized by war and  then you are putting at risk all of the government regimes that permit for a nuclear power plants there are inspections almost on a daily basis if not a weekly or monthly basis cavan justice alito gave let's just assume that to be true you do keep on talking about a discrete interest in property so i guess my question is what discrete interest are you talking about if not an ease exclude counts as a discrete interest and property i mean the right to exclude is one of the sticks in the bundle that a property owner has but usually when people talk about discrete interests and property it's like know sorry if you took a lot about background principles of property law and meat and that's the way you say of every inspection regime in every search regime that somehow that there  is that there is a background principle of property law that is incorporated into this analysis so that these property owners don't really have a property right to exclude inspectors and so forth but then you because this these questions of what is your property interest seems as though it shouldn't stop at the time of the constitution the taken as clause operates as against whatever it is days there really is a difference between permanence deprivations and temporary deprivation just i don't i think that in so far as you're talking about a structure on one's property that structure needs to be search that was certainly present that common law and the th amendment put limits on the government's power power to search but it certainly recognises that that is a power that the government does best at all times and certainly at the time of california found that access in order to speak with employees about the downsides of joining a union so again not a government worker coming to do do a search to ensure compliance with the regulatory regime but a rd party being permitted and given a right to access the property or were or supposed california had allowed any member of the public to come on the property to speak with employees for three hours a day on one hundred and twenty dollars days a year about health and safety issues educational opportunities medical treatment available to them or were or just promote an ideological cause would there be a different result you know the babcock case and then of course in the let's we are we reiterated that in justice thomas was opinion for the court there the babcock briefs what if you go back into those those are all about property rights against union organizing rights and then babcock considers sad and sets forth a rule now i think you you probably prevail under that rule but i'm curious why you are argument is not as simple as justice clark's california supreme court necessarily to avoid a potentially unconstitutional but an unconstitutional unconstitutionality if the regulation were a lad to go beyond  badcock it is interesting the statute is informed by the constitution and saying given the constitutional status of the property rights we're only going to allow this very limited intrusion again as justice clark says for the california supreme court it isn't that a simple easy response to this case which is we've already considered sixty five years ago the balance of property rights against labor organizing we set forth a very clear rule  and it was reiterated in let's me or by justice thomas majority opinion and you know there's no reason apart from that rule that we've seen provide so expansive protection for property rights but not without the go to the question of when does something arise when does something become a physical taking such that the person a will is triggered so let me ask you this what if california had a regulation that from a union organizers to go onto the party the compensation may be minimal but it's still ok good ok so let me make sure that i understand the relevance and of the you know focus on the amount of time and the degree of intrusion it's really not about whether property has been taken it's about whether that's reef active of a government intent to occupy or take which is why that language in portsmouth harbor talked about if the intent behind a single shot was to assert control over the property and the taking would be complete and that there's a line drawing and any other problems are as you know others of my colleagues have been suggesting that the licensing  brief and which states they will listen some of these justifications or some of these inspection regimes might be justified in the chamber of commerce makes this point as constitutional conditions on participation in the agriculture employment market just as a for f d a licensing regimes that inspections can be justified as legitimate exercises of conditions on the government permitting a company to enter the pharmaceutical market why doesn't that rationale apply to your entry into the agricultural market because just this car aside and for the right to enter agriculture is not something that the government  authorizes only a limited number of organizers to enter petitioners farm for the sole purpose of speaking with employees that non work time during certain periods of the year for no more than three hours a day and subject to detailed restriction the only question before the court is whether that regulation is a per se taking and the answer is no in this area of the law the court has a rd person a treatment career dream regulations that are the functional equivalent of the government directly appropriating private property there are just too narrow categories of per se regulatory taking the lucas category for regulations that eliminate all economically beneficial uses and the whereto category for regulations authorizing a permanent and continuous intermittent physical intrusions are also subject to ad hoc treatment even though the duration and the verity of the intrusion is a critical factor that may predominate in that analysis petitioners can't credibly claim that the board's regulation destroyed all their rights any part of their property or that it's the functional equivalent of the government taking over there are foreigners are free to challenge this regulation under the taking cost but judicial review should proceed by focusing on the nature of it access regulation under penn central your honor because of the degree of a physical intrusion and you know potentially much greater interference both investment back expectations and that is why you want to have an ad hoc inquiry here so you can take account of the features of a hypothetical like and make it look more like a taking their rule of course would apply were garlits even to one hour a year on just a very hypothetical and nor the critical features that go into the amendment analysis the new year i'm quite interested in how related the inspection or the opportunity to be on private property has to do with the power related doesn't have to be to the  taking i think that would be a stronger claim under the ad hoc inquiry it's a pretty substantial interference with anybody's investment back expectations you don't expect or proper to be a training ground for the state police and it's going to  the only two or three police officers can train during business hours and only on occupied portions of the property how is that if that is closer to the line than the union coming onto the property while workers are there and possibly even interfering with workers how is the truth the police officers different from that of the union organizer know more about what the police officers are allowed to do on the property but we do know under this regulation your honor the union organizers are not allowed to interfere with the property or agricultural operations they can only hop to the workers during non and they're not firing guns they're not meeting with the employees and for that and they are to remain as in conspicuous as possible so why is that closer to and then the union organizers well i think it those are continuous intrusion your honor thank you just as prior think the petitioners are saying that whether this regulation is excessive or not is beside the point that's a question of whether there's a regulatory taking and whether it went too far this is the kind of taking it is no matter what  compensation under the th amendment it is a th amendment taking because it's a classical property in tears we have previously defined or sort of said but that kind of interest has to be a taking that is continuous and indefinite like taking even an inch of somebodies apartment house to put up a ca t v system or taking an easement from the b the virtue of their approach is that it's pretty clear i think because otherwise you get into the mess of saying well what about a year here it's four percent of all the years our isn't ten percent or twelve percent of all the daylight hours and and the but i agricultural land but rather is a steel mill you can't transfer these men that doesn't exist anymore nobody can go on the property and there may be other characteristics regulatory scheme that applies to a particular type of business conducted on the land and the access is not to a particular pathway or parcel it to the employees where they are and the regulation makes clear if they're harder to get on the five off of property before or after and they are operative out five or six different formulations of their own front test really they suggested very strongly in the opening brief you'd be looking at state law and how they disavow that and you say that the federal common law inquiry but they haven't been able to offer a clear definition of how a court would the cerne whether it is a quote event or a permissible series of trespasses and if you get past that then courts are going to have to be applying a multitude of very complex exceptions in the mine run case rather than looking at the considerations that have always been the focus of an amendment inquiry the severity of the burden and the character of the particular government action q thank you of taking an easement so that people in the town can walk over somebody's speech from property to get to a public beach you would concede that bass that is a person taking i want to know a little bit more to know i analyzed it but yes i think that under any standard a furtive form a low curtain an easement over the property would be a taking and what this court has said and no one is a continuous as per se under this court's precedents if it was you know a very limited period of time i get you to analyze it under penitential but well that seems like a pretty simple as seems like a pretty simple question what more we do need to know tells us we're going to take an easement over your property so that people can walk across your property to get from point a to point b i think that's right you're under your precedents i think it has to be continuous for it to be per se but i start for me to conceive of a situation where our public access event pertinent to a particular days a year suppose it's only on the morial day th of july and labor day weekends different answer i think those are going to be found on taking can claim under a penitentiary or honor focus on that formal different scenario and want to reserve the possibility of a per se rule for that type of situation where the current to a property that doesn't give much heartburn because i think that that is going to be something we pay for in any event what would deeply problematic is if the court adopted a rule per say treatment for any sort of authorized intrusion including a limited intrusion of the part of a regular i mean if you're not willing to concede to a permanent  easement across from each property to get from point a to point b is a per se takings i don't know where your argument is going and if you're not taking that position then i really don't understand exactly where you're drawing the line that's what i'm trying to get a yes or i think those would be taken under any candidate but we should not adopt a proper per se rule that applies to the different type of regulatory regime that we have here and many types of implored i think you're saying that a person rule should apply only to permanent and continuous physical limitations of property right that's just fine by state law so let me let me take you a step further if it's not why should we be applying the pen central tests that really doesn't fails to capture the significant interest in the right to exclude at stake in physical invasion cases one of my colleagues who are skeptical that there be branch money involved in a situation like this one because i suspect that there's very little economic damage that's being done to a property in which nears intermittent inspections and there's nothing that runs with the land or the business i mean if somebody buys land in changes to business then this access regulation has no applicability that suggests to me that it has to be is different test it can't be won't satisfy many people well we need we need something that gives clear guidance so give me a clear a clear method of addressing  so something like justice thomas is hypothetical doesn't become permissible to the government to do seems to me that letting the government com minimum little bit struggling to understand your argument so can can can i just ask you to clarify this as i understood what you said to justice alito you said maybe thirty six thousand five hundred and twenty four taking of  ability to intrude on property is a person taken under libretto and nolan then you know just ratcheting back from that when does it stop being a person taken is that i think any line drawing problem with that position which i think both from your president are going to not work are frequently because we don't have that regulations that are anywhere close to contain us and they're not going to create a lot of practical problems because i applied and he has used problems but i'm really trying to figure out you know figure out the answer to your problems i guess i just don't see even if you don't want to give me i can understand you're not willing to give me a what's this number but what's the principle that would enable you to set a line someplace short of three hundred and sixty five dollars days i think that principle here is that currently a free man is there reserved for extreme cases it really are the functional equivalent of the government i'd like to pick up on that in your brief you did i believe concede that an easement identical to the want to know when but limited to daylight hours may qualify as a taking without regard to the factors so i think that at least was your point there and it's a if that's the case then let's just take a few things and move away from it a little bit what if the state limited access to the would still be perfectly under whereto and no one ok and and then what if the state prevented any of those residents from transferring their interest that was a personal right would would then cease to be a person taking is one of the stated promise to remove the easement in the event that the residential property owner agreed to have it developed into a commercial on hours is the focus is really on whether there's some continued ability to use and possess and dispose of the property or whether those rights are effectively destroyed and if the government says the only time you can exclude somebody from the beach is in the middle of the night we think  one drawing and i wanted to ask you again the flipside of what i was asking your friend on the other side seems to me are precedent in the labor organizing context has drawn the lines and  narrow and very simple resolution for this case and i want to you tell me why it's wrong or why you disagree with it babcock was obviously a sound story based one informed by the constitution explicitly as i read it and the question was how much access will we'll while to property under the statute the n r a given the constitutional backdrop of property rights and the decision that seems to reflect the court's understanding of the constitution and how much pro protection there to put aside though the nomenclature the rule is so you can't get access to the property when there are alternative means of communication master babcock rule about how to are there not rely on babcock and the labor organizer in context you seem to want to get much broader rule but this is the flipside of that is about a partial problem for you because we just followed that and said that reflected the balance of the constitutional rights protest on my lawn because it's still highly visible to the traffic that's passing by but exactly like this one you know it says it can do it one one hundred and twenty dollars days a year and three hours at a time just starting rush hour i take it under your theory that's not a person taking that would be subject to why would it be a powerful consentual i mean in the reply brief your friends on the other side point out that the th circuit in the federal circuit couldn't identify any penitential cases in which a court is trying to taking where the diminished in value is less than fifty percent and surely my property value hasn't decreased more than fifty percent as a result of the regulation i just described i don't think that i would remember right way to approach that i have about where  of the burden and their character and nature of the government action and let me just interrupt you there so we don't lose all my time what is the big deal here if the severity it goes to compensation as the petitioners claim why would it be that big of a deal for would be a big deal because then you would be skipping past the considerations as to the severity of the burden the nature of the action that informing the th amendment analysis and that wouldn't be a straightforward as my friend suggests because you have to apply a multitude of complex exceptions before intermittent access regulation and the character of that regulation for finding the taking the rule proposed by petitioners would require you to overrule your precedent and find per se takings without regard to those important factors now they say it wa access event and then by requiring courts to apply a multitude of complex exceptions to all the access regulations that fall within the scope of that rule and the sheer volume of words petitioners and there i mean to vote  all the succession to mitigate the harmful impacts of their rule is strong evidence that the rule is not a sensible one thank you thank you council remodelled mr thompson thank you mr chief justice three quick point there's been a number of discussions about the easement characterization in this case we characterize these moves here as the court did in portsmouth harbor called it a servitude cosby and he's going to try to read anything that neither of those none of those cases involve case where value is diminished less than fifty percent and lastly the question of the day is the line trying we are asking the court to draw a line that is always drawn the line between use restrictions and physical invasion  draw a principled line and for these reasons the decision of the th circuit should be reversed thank you thank you