The Supreme Court's 2021 decision restores the per se rule for government-authorized physical invasions, and its implications for non-agricultural property owners are only beginning to be litigated.
I. Doctrinal Framing
The Takings Clause of the Fifth Amendment — "nor shall private property be taken for public use, without just compensation," applicable to the states through the Fourteenth Amendment — divides analytical cases into two broad categories: per se takings that require no further inquiry, and Penn Central regulatory takings that require a multi-factor balancing analysis. Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021), reaffirmed and extended the per se physical takings rule, holding that a California regulation requiring agricultural employers to allow union organizers onto their property three times per year constituted a per se taking under Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).
The decision's significance extends far beyond agriculture. Its reasoning restructures how courts approach any government action — regulatory or otherwise — that grants third parties a right of access to private property. For plaintiffs' counsel pursuing inverse condemnation claims, Cedar Point provides both an offensive weapon and a structural map.
II. The Loretto Foundation
To understand Cedar Point, one must understand the Loretto per se rule. In Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), the Supreme Court held that a New York law requiring landlords to permit cable television companies to install equipment on their buildings constituted a per se taking regardless of the economic impact on the property owner. The Court grounded the rule in historical property rights: the right to exclude is "one of the most treasured strands in an owner's bundle of property rights," and a permanent physical occupation — however small — is categorically a taking.
Loretto established the permanent physical occupation rule. What Cedar Point decided was whether government-authorized intermittent physical invasions — as opposed to permanent occupations — fell within the same per se rule or required Penn Central analysis.
III. Cedar Point Nursery v. Hassid — The Holding
California's Agricultural Labor Relations Act authorized union organizers to enter agricultural employers' property for up to three hours per day, 120 days per year, to solicit support. Cedar Point Nursery and Fowler Packing Company argued this access regulation was a per se taking. The Ninth Circuit held it was not a per se taking because the access was intermittent, not permanent.
The Supreme Court reversed, 6-3, in an opinion by Chief Justice Roberts. The Court held that the access regulation appropriated "a right to invade the growers' property and therefore constitutes a per se physical taking." The key analytical move: the Loretto per se rule applies not only to permanent physical occupations but to any government action that "appropriates a property right by granting third parties a right to access the property on a permanent and continuous basis."
The Court framed the critical distinction as between:
- A taking: Government grants a third party the right to enter and use private property. This appropriates the right to exclude and is a per se taking.
- A regulation: Government limits how an owner may use property or restricts certain uses. This may or may not be a taking under Penn Central.
The access regulation in Cedar Point fell on the taking side because it affirmatively granted the union organizers a right to enter — the government gave a third party what it took from the property owner: the right to exclude.
Duration and Per Se Status
The Court also addressed the government's argument that duration matters: a brief, intermittent access right is not the same as a permanent occupation. The Court's response is important for practitioners: duration affects compensation, not the existence of a taking. Just as a temporary physical invasion can still be a taking (citing Arkansas Game & Fish Comm'n v. United States, 568 U.S. 23 (2012)), the brevity of authorized access does not eliminate the per se classification. The question of how much the taking is worth — the compensation calculation — incorporates duration, but the categorical rule that an appropriated right of access is a taking does not.
IV. What Cedar Point Does Not Reach
The majority opinion was careful to preserve governmental authority in several respects. The Court expressly noted that Cedar Point does not affect:
- Government inspections and regulatory entries: Health and safety inspections, OSHA entries, building code compliance visits, and similar government entries under lawful regulatory schemes are not "appropriations" of the right to exclude in the same way because they are temporary, limited-purpose entries that have "traditionally been understood not to be takings." The key distinction: government agents entering to enforce law differ from government grants to third-party private actors.
- Broadly available public access rights: Property owners who open their property to the general public as a condition of operation (shopping centers, restaurants, etc.) cannot claim a per se taking every time a member of the public enters.
- Easements secured through eminent domain: The Cedar Point rule addresses per se liability; the compensation process for actually condemned easements remains unaffected.
Plaintiffs' counsel must be precise: Cedar Point targets regulatory schemes that transfer access rights to private third parties, not every government activity that touches private property.
V. Offensive Applications for Plaintiffs' Counsel
A. Access Rights Granted to Private Utilities and Developers
The most direct offensive application of Cedar Point is against government schemes that authorize private utilities, telecommunications providers, pipeline operators, or developers to access private property without going through formal condemnation. If a state statute authorizes a private gas pipeline company to enter and conduct surveys on private land without full condemnation proceedings — and without just compensation — Cedar Point is a direct per se takings argument.
Post-Cedar Point, property owners confronted with such access demands have a strengthened argument that compensation is owed immediately, not after a Penn Central balancing exercise.
B. Environmental and Wetlands Access Programs
State and federal environmental regulations sometimes grant government contractors, grantees, or partner organizations access rights to private property for mitigation, monitoring, or restoration purposes. Where those programs authorize third-party (rather than government) access without owner consent, Cedar Point's per se rule may apply.
C. Telecommunications Infrastructure
The FCC's 2018 small-cell rules limiting landlord compensation for small-cell wireless antenna attachments raised Cedar Point-adjacent questions about government-authorized third-party access to private property. Post-Cedar Point, challenges to compensation caps in telecommunications access statutes have new doctrinal support.
VI. The Compensation Question
Cedar Point establishes that a per se taking occurred; it does not dictate the measure of compensation. Just compensation under the Fifth Amendment is the "fair market value" of what was taken — here, the value of the access right appropriated. For intermittent access rights, this is typically measured as the fair rental value of the access easement, not the value of the entire property.
This compensation framing is critical for plaintiffs' counsel structuring inverse condemnation claims: the client's recovery is the value of what was taken (the access right), not the value of the whole parcel. Where the access right has minimal market value — a three-hour-per-day entry right may not rent for much — the practical recovery under Cedar Point may be modest despite clear liability. Counsel should structure the claim to encompass all compensable elements: diminution in value to the property as a whole caused by the access encumbrance, not merely the theoretical rental value of the access period.
VII. Practice Notes
Identifying the right regulatory target. Cedar Point requires that the government have affirmatively granted third parties a right to access. A regulation that merely fails to prevent trespass, or that limits fencing (thereby making trespass easier), is structurally different from one that grants an affirmative access right. Careful review of the enabling statute, regulation, or ordinance is essential to determine whether the government has affirmatively authorized the third-party access.
Federal Claims Act jurisdiction for federal takings. Inverse condemnation claims against the federal government proceed in the United States Court of Federal Claims under the Tucker Act, 28 U.S.C. § 1491. Claims against state and local governments may be brought in state court under state inverse condemnation doctrine or in federal court under 42 U.S.C. § 1983. The Cedar Point analysis is constitutional, so either pathway carries the same substantive standard.
Nominal compensation and litigation cost calculus. Where the value of the appropriated access right is genuinely small, counsel must be candid with clients about the economics. Cedar Point may establish liability with certainty, but if just compensation is $500, an inverse condemnation action may not be rational absent fee-shifting. Check whether the applicable state inverse condemnation statute or § 1988 provides attorney's fee recovery.
Temporary vs. permanent appropriations. Cedar Point reinforces that even intermittent access rights are per se takings. Counsel pursuing flooding, pipeline, or telecommunications access claims should argue Cedar Point for any recurring government-authorized third-party access, even where the access is seasonal or limited-duration.
VIII. Open Questions and Where the Law Is Moving
The lower courts are still working out Cedar Point's scope. Key open questions include:
- Does Cedar Point apply to government-authorized access for purposes that benefit the public directly (e.g., coastal access statutes that authorize the public — not a specific third party — to traverse private beachfront)?
- How does Cedar Point interact with "substantially advance a legitimate state interest" analysis in Nollan/Dolan exaction cases?
- What is the compensation measure for the specific access appropriated in agricultural, pipeline, and telecommunications contexts?
The Court's conservative majority has shown sustained interest in strengthening property rights protections. Cedar Point is likely a floor, not a ceiling.
IX. Closing
Cedar Point Nursery v. Hassid accomplished something straightforward but consequential: it confirmed that government-authorized third-party access to private property is a per se taking, and that duration is a compensation question rather than a liability question. For plaintiffs pursuing inverse condemnation claims based on regulatory access regimes, the doctrinal path after Cedar Point is clearer than it was before. The work is identifying which access regimes constitute government appropriations of the right to exclude — and which remain on the regulatory side of the line.
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Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.