                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


CEDAR POINT NURSERY; FOWLER             No. 16-16321
PACKING COMPANY, INC.,
             Plaintiffs-Appellants,        D.C. No.
                                        1:16-cv-00185-
                v.                        LJO-BAM

GENEVIEVE SHIROMA; CATHRYN
RIVERA-HERNANDEZ; SANTIAGO                 ORDER
AVILA-GOMEZ, Esquire; ISADORE
HALL III,
            Defendants-Appellees.



                 Filed April 29, 2020

     Before: Edward Leavy, William A. Fletcher,
         and Richard A. Paez, Circuit Judges.

                       Order;
             Concurrence by Judge Paez;
               Dissent by Judge Ikuta
2            CEDAR POINT NURSERY V. SHIROMA

                          SUMMARY *


                           Civil Rights

    The panel denied a petition for panel rehearing, and
denied on behalf of the court a petition for rehearing en banc,
from an opinion in which the panel affirmed the district
court’s dismissal of an action seeking declaratory and
injunctive relief against members of the California
Agricultural Labor Relations Board who promulgated a
regulation allowing union organizers access to agricultural
employees at employer worksites under specific
circumstances.

    Concurring in the denial of rehearing en banc, Judge
Paez, joined by Judge W. Fletcher wrote separately only to
respond to arguments raised in Judge Ikuta’s dissent from
the decision, which were not raised by the parties. Judge
Paez stated that the majority opinion correctly held that the
plaintiffs had not suffered a “permanent and continuous”
loss of their right to exclude the public from their property.
They had thus not suffered a taking in violation of the Fifth
Amendment.

    Dissenting from the denial of rehearing en banc, Judge
Ikuta joined by Judges Callahan, R. Nelson, Bade, Collins,
Bress, Bumatay, and VanDyke stated that the majority
fundamentally misunderstood the nature of the property
rights at issue, and how California had taken them. Judge
Ikuta wrote that the plaintiffs had plausibly alleged that
California had appropriated easements and thus taken
    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
            CEDAR POINT NURSERY V. SHIROMA                   3

valuable property rights protected by the Takings Clause.
By failing to give fair consideration to the plaintiffs’ actual
claims, the majority created a circuit split, disregarded
binding Supreme Court precedent, and deprived property
owners of their constitutional rights.


                         COUNSEL

Wencong Fa (argued), Jeremy Talcott, Joshua P. Thompson,
Damien M. Schiff, and Christopher M. Kieser, Pacific Legal
Foundation, Sacramento, California; Ian B. Wieland and
Howard A. Sagaser, Sagaser Watkins & Wieland PC;
Fresno, California; for Plaintiffs-Appellants.

R. Matthew Wise (argued), Deputy Attorney General; Mark
R. Beckington, Supervising Deputy Attorney General;
Douglass J. Woods and Thomas S. Patterson, Senior
Assistant Attorneys General; Xavier Becerra, Attorney
General; Office of the Attorney General, Sacramento,
California; for Defendants-Appellees.

Frank Garrison and Ilya Shapiro, Cato Institute,
Washington, D.C., for Amicus Curiae Cato Institute.

Steven J. Lechner, Mountain States Legal Foundation,
Lakewood, Colorado, for Amicus Curiae Mountain States
Legal Foundation.

Nancy N. McDonough and Carl G. Borden, California Farm
Bureau Federation, Sacramento, California, for Amicus
Curiae California Farm Bureau Federation.

Mario Martínez, Martínez Aguilasocho & Lynch APLC,
Bakersfield, California; Jacob C. Goldberg and Henry M.
4           CEDAR POINT NURSERY V. SHIROMA

Willis, Schwartz Steinsapir Dohrmann & Sommers LLP,
Los Angeles, California; for Amici Curiae United Farm
Workers of America and United Food and Commercial
Workers Union, Local 770.


                          ORDER

    The full court was advised of the petition for rehearing
en banc. A judge requested a vote on whether to rehear the
matter en banc. The matter failed to receive a majority of
the votes of the nonrecused active judges in favor of en banc
consideration. Fed R. App. P. 35.

    The petition for rehearing en banc is DENIED.

    Attached are a dissent from and a concurrence respecting
the denial of rehearing en banc.



PAEZ, Circuit Judge, concurring in the denial of rehearing
en banc, joined by W. FLETCHER, Circuit Judge:

    A majority of the active judges of the court voted against
rehearing this case en banc. I concur in that decision and
write only to respond to arguments raised in Judge Ikuta’s
dissent from that decision, which were not raised by the
parties. The dissent argues that the panel opinion failed to
address the Growers’ central argument that the Access
Regulation appropriates an easement by granting union
organizers access to their property without their approval.
According to the dissent, because an easement is a species
of property, the Access Regulation effects a taking of
property in violation of the Fifth Amendment.
            CEDAR POINT NURSERY V. SHIROMA                  5

    The dissent accuses the majority of ignoring the
Growers’ claim and reframing it as a different one. This
seriously mischaracterizes the Growers’ arguments before
this court. They argued one and only one theory of their
case: that the Access Regulation amounted to a “permanent
physical invasion” of their property. They did not argue that
the taking of an easement was the beginning and end of the
analysis. They wisely did not do so because the argument
advanced by Judge Ikuta fundamentally misapprehends
existing Supreme Court authority.

                           * * *

    The dissent’s central doctrinal argument is that the state
engages in a Fifth Amendment taking whenever it
appropriates an easement. As support for this bright-line
rule, the dissent cites a series of Supreme Court cases
purportedly holding that the imposition of any easement is a
per se taking. The cases say no such thing.

    In Portsmouth Harbor Land and Hotel Co. v. United
States, for instance, the dissent points out that the Court
remarked that a “servitude” constitutes “an appropriation of
property for which compensation should be made.” 260 U.S.
327, 329 (1922) (citation omitted). But what the dissent
neglects to mention is that in Portsmouth Harbor, the Court
limited its inquiry to whether the servitude imposed in that
case “would constitute an appropriation of property for
which compensation should be made” when the intrusion
“result[ed] in depriving the owner of its profitable use[.]”
Id. (citation omitted) (emphasis added).

    The Court applied that same basic principle in United
States v. Causby. There, the Court considered whether a
taking had occurred where military flights in the airspace
over the plaintiffs’ property resulted in “the destruction of
6           CEDAR POINT NURSERY V. SHIROMA

the use of the property as a commercial chicken farm.” 328
U.S. 256, 259 (1946). The government conceded—and the
Court agreed—that the military flight activities would effect
a taking if the “flights over respondents’ property rendered
it uninhabitable.” Id. at 261. The government’s actions
resulted in the taking of an “easement of flight” and, “if
permanent and not merely temporary, normally would be the
equivalent of a fee interest.” Id. at 261–62. The
government’s acts “would be a definite exercise of complete
dominion and control over the surface of the land.” Id. at
262. “If, by reason of the frequency and altitude of the
flights, respondents could not use this land for any purpose,
their loss would be complete. It would be as complete as if
the United States had entered upon the surface of the land
and taken exclusive possession of it.” Id. at 261 (footnote
omitted). Although there was a taking of an “easement of
flight,” a Fifth Amendment taking occurred not only because
of the “easement,” but because of the severe negative effects
of the government’s actions on the plaintiffs’ property. Id.
at 261–62.

    Neither of these cases stands for the proposition that a
regulatory easement which allows intermittent intrusions
onto private property will result in a taking where there is no
evidence that the intrusion has rendered the property
“uninhabitable,” id. at 261, or “depriv[ed] the owner of its
profitable use,” Portsmouth Harbor, 260 U.S. at 329.

    The dissent faults the majority for failing to address
whether the appropriation of an easement, by itself, violates
the Takings Clause. The dissent complains that the majority
instead erroneously focuses on whether the Access
Regulation amounted to a “permanent physical invasion.”
As support for this accusation, the dissent notes that in their
complaint, the Growers allege that “the access regulation
              CEDAR POINT NURSERY V. SHIROMA                      7

now creates an easement for union organizers to enter
Plaintiffs’ private property without consent or
compensation.” The dissent then asserts that the majority
“ignore[d]” and “re-characteriz[ed]” the Growers’ claim.

    But the dissent’s theory is not the theory the Growers
advanced in their appellate briefs. Although the Growers did
assert that the Access Regulation “appropriat[es] an
easement[,]” they argued that the easement was a
“permanent physical intrusion” under Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).
As a result of this intrusion, the Growers argued, the Access
Regulation effected an unconstitutional taking.

    Guided by the Nollan 1 standard—that a “permanent
physical invasion” occurs when the state grants the public a
“permanent and continuous right to pass to and fro, so that
the real property may continuously be traversed”—the
majority correctly held that the Growers failed to state a
cognizable takings claim. Although the Access Regulation
does not have a contemplated end-date, it does not grant
union organizers a “permanent and continuous right to pass
to and fro” on the Growers’ property. The regulation makes
clear that the union organizers may not, whenever they
desire, enter the employers’ premises to speak with
employees about unionization.            Only in specific
circumstances may they take advantage of the limited access
provided by the Access Regulation. Given that the Access
Regulation does not authorize “continuous” access to the
Growers’ property, it likewise does not result in a wholesale
deprivation of their right to exclude and thus does not effect
a Fifth Amendment taking. And unlike the raisin farmers in
Horne v. Department of Agriculture, who were forced to

   1
       Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 832 (1987).
8             CEDAR POINT NURSERY V. SHIROMA

transfer over half of their annual crops to the federal
government, the Growers here were not stripped of their
“rights to possess, use and dispose of” their property. 2
135 S. Ct. 2419, 2428 (2015) (quoting Loretto, 458 U.S.
at 435).

     The dissent also asserts that the majority opinion creates
a circuit split with the Federal Circuit’s decision in Hendler
v. United States, 952 F.2d 1364 (Fed. Cir. 1991). Not so. In
that case, the government installed wells on the plaintiffs’
property and subsequently “entered upon [their] land from
time to time, without permission, for purposes of”
maintaining them. Id. at 1377. The court reasoned that
“[t]hese surveillance wells [were] at least as ‘permanent’ in
this sense as the CATV equipment in Loretto, which
comprised only a few cables attached by screws and nails
and a box attached by bolts.” Id. (citation omitted). And
even after installing the physical wells, the government
routinely entered the plaintiffs’ land “at its convenience,” as
if it had “acquired an easement not unlike that claimed in”
Kaiser Aetna v. United States, 444 U.S. 164 (1979).
Hendler, 952 F.2d at 1378. The resulting situation was a
complete “taking of the plaintiffs’ right to exclude,” so long
as the wells remained on the property. Id. As in Nollan and
Kaiser Aetna, the property owners retained no ability to

     2
       The government’s raisin-seizure was a per se taking under Loretto
because the growers “lost the entire ‘bundle’ of property rights in the
appropriated raisins—‘the rights to possess, use and dispose of’ them—
with the exception of the speculative hope that some residual proceeds
may be left when the Government is done with the raisins and has
deducted the expenses of implementing all aspects of the marketing
order.” Horne, 135 S. Ct. at 2428 (internal citation omitted). “Actual
raisins [were] transferred from the growers to the Government” and
“[t]itle to the raisins passe[d] to the Raisin Committee.” Id. No such
transfer happened here.
            CEDAR POINT NURSERY V. SHIROMA                  9

control when and where the government trespassed upon
their property. Id.

    Here, unlike in Hendler, the Board has not erected a
permanent physical structure on the Growers’ property, and
the union organizers are excludable from the property unless
they are authorized to enter under the terms of the Access
Regulation. The court’s opinion thus does not create a
circuit split.

                           * * *

    The court’s majority opinion correctly held that the
Growers have not suffered a “permanent and continuous”
loss of their right to exclude the public from their property.
Nollan, 483 U.S. at 832. They have thus not suffered a
taking in violation of the Fifth Amendment. Neither the
panel majority nor the district court erred in so holding.

   For the reasons discussed above and in the majority
opinion, I concur in the court’s decision not to rehear this
case en banc.



IKUTA, Circuit Judge, joined by CALLAHAN, R.
NELSON, BADE, COLLINS, BRESS, BUMATAY, and
VANDYKE, Circuit Judges, dissenting from denial of
rehearing en banc:

    Once again, the Ninth Circuit endorses the taking of
property without just compensation. See Horne v. U.S.
Dep’t of Agric., 750 F.3d 1128 (9th Cir. 2014), rev’d sub
nom. Horne v. Dep’t of Agric., 135 S. Ct. 2419 (2015).
California property law and Supreme Court precedent make
clear that an easement is private property protected by the
10          CEDAR POINT NURSERY V. SHIROMA

Takings Clause. See, e.g., L.A. Terminal Land Co. v. Muir,
136 Cal. 36, 48 (1902); Nollan v. Cal. Coastal Comm’n,
483 U.S. 825, 831 (1987). In opposition to this precedent,
the majority concludes there is no taking because the state’s
appropriation of an easement is not a “permanent physical
occupation.” Cedar Point Nursery v. Shiroma, 923 F.3d
524, 531–34 (9th Cir. 2019). This decision not only
contradicts Supreme Court precedent but also causes a
circuit split. See Hendler v. United States, 952 F.2d 136,
1377–78 (Fed. Cir. 1991). We should have taken this case
en banc so that the Supreme Court will not have to correct
us again.

                               I

   The property owners and plaintiffs in this case are Cedar
Point Nursery, a strawberry nursery, and Fowler Packing
Company, a shipper of table grapes and citrus. Both
companies employ full-time workers and seasonal workers,
none of whom live on company property.

    The companies abruptly became aware that union
organizers claimed a right to trespass on their property in the
summer of 2015. According to Cedar Point, early one
morning near the end of the strawberry harvesting season,
union organizers entered Cedar Point’s property and
trespassed across it to the trim sheds, where hundreds of
employees were preparing strawberry plants. The union
organizers disrupted work by moving through the trim sheds
with bullhorns, distracting and intimidating the workers.
Fowler, on the other hand, was able to avoid such an
intrusion; when the union organizers attempted to invade
Fowler’s property, Fowler blocked them.

   After these clashes, union organizers filed complaints
against both Cedar Point and Fowler with the California
              CEDAR POINT NURSERY V. SHIROMA                         11

Agricultural Labor Relations Board (the Board), alleging
unfair labor practices. The union organizers claimed that
they had a statutory right to enter Cedar Point’s and Fowler’s
property based on the Agricultural Labor Relations Act (the
Act), Cal. Lab. Code §§ 1140–1166.3. The Act, enacted in
1975, substantially tracks the language of the National Labor
Relations Act by giving employees the right to concerted
action. Compare Cal. Lab. Code § 1152 with 29 U.S.C.
§ 157.

    The Act does not authorize non-employees to enter
private property. See, e.g., Cal. Lab. Code § 1152. But
shortly after the Act went into effect, the Board promulgated
an emergency regulation to give union organizers access to
the private property of agricultural employers. See Cal.
Code Regs. tit. 8, § 20900(e). This emergency regulation is
sometimes referred to as the “Access Regulation.” In
promulgating the regulation, the Board relied on a Supreme
Court opinion, N.L.R.B. v. Babcock & Wilcox Co., 351 U.S.
105 (1956), which upheld an employer’s right to exclude
nonemployee union organizers from the employer’s private
property but also created an exception: the employer’s
property right must “yield to the extent needed to permit
communication of information on the right to organize”
when “the location of a plant and the living quarters of the
employees place the employees beyond the reach of
reasonable union efforts to communicate with them,” id.
at 113; see Agric. Labor Relations Bd. v. Superior Court,
16 Cal. 3d 392, 414 (1976) (the Board “predicated its access
regulation” on Babcock & Wilcox). 1


    1
      At the time the California regulation was promulgated, agricultural
workers often lived on their employer’s property and were cut off from
the outside world, so “unions seeking to organize agricultural employees
12            CEDAR POINT NURSERY V. SHIROMA

    The current version of the Access Regulation is not
limited to situations where union organizers do not have
reasonable access to employees. 2 Rather, it gives union
organizers a permanent right to access “the premises of an
agricultural employer for the purposes of meeting and
talking with employees and soliciting their support.” Cal.
Code Regs. tit. 8, § 20900(e). Union organizers may enter
the private property for one hour before the start of work,
one hour after the completion of work, and one hour during
the lunch break, for 120 days during the calendar year. Cal.
Code Regs. tit. 8, § 20900(e)(3). Under the regulation, two
organizers may enter the owner’s property for every
15 employees. Cal. Code Regs. tit. 8, § 20900(e)(4)(A).
The Access Regulation prevents the employer from
interfering with the organizers’ full access to the property,
Cal. Code Regs. tit. 8, § 20900(e)(5)(C), and prohibits the

d[id] not have available alternative channels of effective
communication.” Cal. Code Regs. tit. 8, § 20900(c). The agricultural
industry has changed dramatically in the past 40 years, however.
“Today, all but a relative handful of workers obtain housing off-farm.”
Brief of Amicus Curiae Cal. Farm Bureau Fed’n at 8, Cedar Point v.
Shiroma, 923 F.3d 524 (9th Cir. 2019) (No. 16-16321) (quoting Don
Villarejo, Cal. Inst. for Rural Studies, The Status of Farm Labor Housing
5 (Mar. 6, 2015), https://bit.ly/36tUs7N). Moreover, modern technology
gives union organizers multiple means of contacting employees. See id.
at 9. Given the Supreme Court’s more recent narrowing construction of
Babcock & Wilcox as applying only to “rare case[s]” where the
“inaccessibility of employees makes ineffective the reasonable attempts
by nonemployees to communicate with them through the usual
channels,” Lechmere, Inc. v. N.L.R.B., 502 U.S. 527, 537 (1992) (citation
omitted), the decades-old justifications for the Access Regulation are
questionable.
     2
      As Judge Leavy points out in his dissent, Babcock & Wilcox does
not undermine the plaintiffs’ takings claim because their employees are
accessible to union organizers through reasonable means of
communication. Cedar Point, 923 F.3d at 539 (Leavy, J., dissenting).
            CEDAR POINT NURSERY V. SHIROMA                   13

union organizers only from injuring crops or machinery,
interfering with the employees when they are boarding
buses, and similar disruptive behaviors, Cal. Code Regs. tit.
8, § 20900(e)(4)(C).

    Cedar Point and Fowler filed this action against members
of the Board after union organizers entered (or attempted to
enter) their properties pursuant to the Access Regulation,
alleging that “the access regulation . . . creates an easement
for union organizers to enter . . . private property without
consent or compensation,” causing an “unconstitutional
taking.” Cedar Point and Fowler also allege they have
reason to believe that union organizers will invoke their right
under the Access Regulation to enter their properties in the
near future. If not for the regulation, Cedar Point and Fowler
allege they would exclude union organizers from their
properties. Therefore, they seek a declaration that the
Access Regulation is unconstitutional as applied to them and
an order enjoining the Board from enforcing the regulation.
The district court dismissed the complaint on the ground that
the plaintiffs failed to state a plausible Takings Clause claim.
See Cedar Point Nursery v. Gould, 2016 WL 3549408, at *5
(C.D. Cal. June 29, 2016).

    The plaintiffs appealed, and the panel affirmed, over
Judge Leavy’s dissent. See Cedar Point Nursery v. Shiroma,
923 F.3d 524, 536 (9th Cir. 2019). The majority first
acknowledged that Cedar Point and Fowler “allege that the
access regulation, as applied to them, effects a Fifth
Amendment taking by creating an easement that allows
union organizers to enter their property ‘without consent or
compensation.’” Id. at 531. But instead of addressing this
takings claim, the majority held (without explanation) that
the Access Regulation does not effect a “classic taking in
14            CEDAR POINT NURSERY V. SHIROMA

which government directly appropriates private property.”
Id. (citation omitted).

    In light of this conclusion, the majority considered
whether the Access Regulation fell within the category of
regulatory takings where “the government requires an owner
to suffer a permanent physical invasion.” Id. (citation
omitted). The majority held that the plaintiffs had not
suffered such a regulatory taking, because, unlike in Nollan,
union organizers were not allowed to traverse the plaintiffs’
property “24 hours a day, 365 days a year.” Id. at 532.
Rather, according to the majority, the Access Regulation
merely affected the plaintiffs’ “right to exclude,” which is
only “‘one strand of the bundle’ of property rights.” Id.
at 533. Accordingly, the majority ruled that the plaintiffs
had “not suffered a permanent physical invasion that would
constitute a per se taking.” Id. at 532. 3

   In reaching this conclusion, the majority fundamentally
misunderstood the nature of the property rights at issue, and
how California had taken them.

                                  II

    Under long-established Takings Clause principles, the
analysis of the plaintiffs’ complaint should proceed as
follows. First, property rights are determined by reference
to state law—here, California. Second, California law has
long recognized that easements are a traditional form of
private property. Third, the Access Regulation appropriates

     3
      While suggesting that the Access Regulation might fall within a
category of regulatory takings governed by the standards set out in Penn
Central Transportation Co. v. City of New York, 438 U.S. 104 (1978),
the majority did not address this issue because the plaintiffs had not
raised it. Cedar Point, 923 F.3d at 533–34.
            CEDAR POINT NURSERY V. SHIROMA                15

easements from property owners and transfers them to union
organizers.    Finally, consistent with Supreme Court
precedent, the appropriation of an easement constitutes a
taking of “private property” and therefore requires “just
compensation.” U.S. Const. amend. V.

                             A

    Some background is in order. “Property rights are
created by the State.” Palazzolo v. Rhode Island, 533 U.S.
606, 626 (2001). As such, “the existence of a property
interest is determined by reference to ‘existing rules or
understandings that stem from . . . source[s] such as state
law.’” Phillips v. Wash. Legal Found., 524 U.S. 156, 164
(1998) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577
(1972)); accord United States v. Causby, 328 U.S. 256, 266
(1946).

   Although property rights are defined by state law, there
are limits on a state’s ability to alter traditional
understandings of property through legislation.          See
Palazzolo, 533 U.S. at 627–28; Phillips, 524 U.S. at 167.
“[A]s to confiscatory regulations (as opposed to those
regulating the use of property), a State may not sidestep the
Takings Clause by disavowing traditional property interests
long recognized under state law.” Phillips, 524 U.S. at 167.
That is, a state may not, “by ipse dixit, transform private
property into public property without compensation.”
Palazzolo, 533 U.S. at 628 (quoting Webb’s Fabulous
Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164 (1980)).

    Thus, a proper takings analysis begins with a
determination of whether there is a traditional property
interest at stake. See Phillips, 524 U.S. at 164; Webb’s
Fabulous Pharmacies, 449 U.S. at 162. Here, a court must
16          CEDAR POINT NURSERY V. SHIROMA

look to California law to make such a determination. See
Palazzolo, 533 U.S. at 628; Phillips, 524 U.S. at 164.

                               B

    For well over a century, California has recognized that
easements are a type of real property. See, e.g., L.A.
Terminal Land Co. v. Muir, 136 Cal. 36, 48 (1902). “An
easement is generally defined as an ‘interest in land created
by grant or agreement, express or implied, which confers a
right upon the owner thereof to some profit, benefit,
dominion, or lawful use out of or over the estate of another.’”
Mosier v. Mead, 45 Cal. 2d 629, 632 (1955) (quoting Muir,
136 Cal. at 48). “An affirmative easement gives its owner a
right to do something on the land of another, such as a right
to pass over the other person’s land.” 6 Miller & Starr,
California Real Estate § 15:9 (4th ed. 2019); accord Wolford
v. Thomas, 190 Cal. App. 3d 347, 354 (1987); Balestra v.
Button, 54 Cal. App. 2d 192, 197 (1942).

    One type of affirmative easement recognized under
California law is an easement in gross. See Balestra, 54 Cal.
App. 2d at 197. An easement in gross is a “personal interest
in real estate of another.” Id. (citation omitted). It may be
“granted and held though not attached to land.” Callahan v.
Martin, 3 Cal. 2d 110, 121 (1935) (citation omitted); accord
Restatement (Third) Property § 1.5(2) (2000). The Civil
Code of California provides examples of easements in gross,
including “[t]he right to pasture, and of fishing and taking
game,” “[t]he right of a seat in church,” “[t]he right of
burial,” “[t]he right of taking rents and tolls,” “[t]he right of
way,” and “[t]he right of taking water, wood, minerals, or
other things.” Gerhard v. Stephens, 68 Cal. 2d 864, 880 n.11
(1968) (quoting Cal. Civ. Code § 802). Thus, as the Civil
Code’s examples indicate, the owner of an easement in gross
              CEDAR POINT NURSERY V. SHIROMA                          17

may enter the land of another for the purpose of taking some
action.

    There is a “long line of California cases holding that an
easement in gross is real property.” Balestra, 54 Cal. App.
2d at 197. In California, the owner of such an easement may
sell or transfer it like any other form of property. See Cal.
Civ. Code § 1044; Callahan, 3 Cal. 2d at 121; LeDeit v.
Ehlert, 205 Cal. App. 2d 154, 166 (1962) (“In California an
easement in gross is both assignable and inheritable unless
restricted by proper language to certain individuals.”). By
the same token, the state’s appropriation of an easement in
gross is a taking of real property, requiring just
compensation.

                                   C

    The U.S. Supreme Court has long recognized that an
easement in gross is a traditional form of private property
that cannot be taken without just compensation. Almost a
century ago, the Court held that plaintiffs had sufficiently
alleged “that a servitude ha[d] been imposed” on their land, 4
resulting in an “appropriation of property for which
compensation should be made,” based on allegations that the
federal government “set up heavy coast defence guns,”
intended to fire across the plaintiffs’ land, and had done so
on occasion “even if not frequently.” Portsmouth Harbor




    4
      A “servitude” refers to “encumbrance[s] consisting in a right to the
limited use of a piece of land or other immovable property without the
possession of it” and “include[s] easements.” Servitude, Black’s Law
Dictionary 1577 (10th ed. 2014).
18            CEDAR POINT NURSERY V. SHIROMA

Land & Hotel Co. v. United States, 260 U.S. 327, 329–30
(1922) (citation omitted). 5

     Some twenty years later, the Court again held that an
“easement was taken” based on “frequent and regular flights
of army and navy aircraft over respondents’ land at low
altitudes.” Causby, 328 U.S. at 258, 267. The Court first
reasoned that under North Carolina law, a landowner had a
property right “to the immediate reaches of the superadjacent
airspace.” Id. at 266. Therefore, invasions of that property
“are in the same category as invasions of the surface.” Id.
at 265. Because the government’s flights were within the
airspace owned by the landowners, the Court concluded that
an “easement was taken” and the government owed the
landowners just compensation. Id. at 267. The Court
reached this conclusion even though more fact-finding was
necessary given that the trial court’s “findings of fact
contain[ed] no precise description as to [the] nature” of the
easement. Id. The easement was “not described in terms of
frequency of flight, permissible altitude, or type of airplane.”
Id. “Nor [was] there a finding as to whether the easement
taken was temporary or permanent.” Id. Because “an
accurate description of the property taken is essential,” the
Court remanded for additional findings of fact to determine
the appropriate amount of the award of compensation. Id. at
267–68. In short, once an easement is taken, the remaining

     5
        Contrary to the concurrence in the denial of the petition for
rehearing en banc (hereinafter, the “Concurrence”), Portsmouth Harbor
did not focus on whether the servitude “result[ed] in depriving the owner
of all profitable use.” Concurrence at 5. Rather, the government’s intent
to use the plaintiffs’ land and its overt acts in doing so were enough to
create a servitude. 260 U.S. at 329–30; see also Causby, 328 U.S.
at 261–62 (holding that there is “no material difference” between a case
where an owner is prevented from “us[ing] th[e] land for any purpose”
and one where the “use of the land [is] not completely destroyed”).
              CEDAR POINT NURSERY V. SHIROMA                        19

question is the amount of just compensation, which is
determined based on the nature of the easement.

    Over three decades later, the Court held that there was a
taking of private property when the government claimed that
a marina owner was required to open its lagoon to the public
on the ground that the lagoon was subject to a “navigational
servitude.” Kaiser Aetna v. United States, 444 U.S. 164, 170
(1979). The Court explained that the government could not
open the lagoon to the public “without invoking its eminent
domain power and paying just compensation” because there
is a taking even if the government “physically invades only
an easement in property.” Id. at 180 (citing Causby,
328 U.S. at 265; Portsmouth Harbor, 260 U.S. 327).
Although Kaiser Aetna referred to the government’s
imposition of a navigational servitude as a taking “under the
logic” of Pennsylvania Coal Co. v. Mahon, 260 U.S. 393
(1922), as well as “an actual physical invasion” comparable
to the traditional taking of a fee interest, Kaiser Aetna,
444 U.S. at 178, 180, the Court has subsequently construed
Kaiser Aetna as holding that there is a taking when the
government imposes a “navigational servitude on [a] marina
created and rendered navigable at private expense,” Lucas v.
S.C. Coastal Council, 505 U.S. 1003, 1029 (1992).

    To the extent there was any doubt as to whether the
appropriation of an easement constitutes a taking, it was
dispelled by Nollan. 6 There, the Court stated that if
California were to require landowners to “make an easement

    6
      Nollan and Dolan v. City of Tigard upheld the government’s right
to “exact some forms of dedication as a condition for the grant of a
building permit.” Dolan v. City of Tigard, 512 U.S. 374, 385–86 (1994).
But the “authority of state and local governments to engage in land use
planning,” id. at 384, is not at issue here.
20            CEDAR POINT NURSERY V. SHIROMA

across their beachfront available to the public,” there is “no
doubt there would . . . be[] a taking.” Nollan, 483 U.S.
at 831. According to the Court, “[t]o say that the
appropriation of a public easement across a landowner’s
premises does not constitute the 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.” Id. (citation omitted). 7

    The Federal Circuit’s decision in Hendler v. United
States, 952 F.2d 1364 (Fed. Cir. 1991), is in accord with
these precedents. There, the Federal Circuit held that the
federal government had acquired an uncompensated
easement when “Government vehicles and equipment
entered upon plaintiffs’ land from time to time, without
permission, for purposes of installing and servicing . . .
various [groundwater] wells.” Id. at 1377. 8 Entry onto
private property, “even though temporally intermittent,”
effected a taking because “the concept of permanent physical
occupation does not require that in every instance the
occupation be exclusive, or continuous and uninterrupted.”
Id. It was sufficient that the vehicles “entered upon [the]

     7
       A treatise on which Nollan relied, see 483 U.S. at 831, explains
that both existing easements and “new easements carved out of the
unencumbered fee” are “subject to the power of eminent domain,” and
“[a]ll of these interests must be paid for when the property is acquired
through eminent domain,” 2 Julius L. Sackman, Nichols on Eminent
Domain § 5.01 (3rd ed.) (emphasis added).
     8
        In a different section of the opinion, the Federal Circuit also
concluded that placing the wells on the plaintiffs’ land gave rise to an
“occupancy . . . within the degree necessary to make out a taking.”
Hendler, 952 F.2d at 1377; compare id. at 1375–77 (analyzing the
government’s placement of wells on the plaintiffs’ property) with id.
at 1377–78 (analyzing the government’s entry onto the plaintiffs’ land to
install and service the wells).
            CEDAR POINT NURSERY V. SHIROMA                    21

plaintiffs’ land from time to time,” “remained on the land for
whatever duration was necessary to conduct their activities,
and then left, only to return again when the Government
desired.” Id. The Federal Circuit reasoned that Nollan and
Kaiser Aetna left “little doubt” that “dr[iving] . . . upon [the]
plaintiffs’ land for the purpose of installing and periodically
servicing and obtaining information from . . . various wells,”
though “temporally intermittent,” constituted a taking. Id.
at 1377–78.

    In sum, the Supreme Court has repeatedly, and
consistently, recognized that the appropriation of an
easement that allows for entry onto private property
constitutes a taking of property. And the Court has expressly
recognized that taking an easement in California is, by
definition, an “appropriation” of “property,” not a “mere
restriction” on use. Nollan, 483 U.S. at 831 (citation
omitted). Indeed, “[t]he clearest sort of taking occurs when
the government encroaches upon or occupies private land for
its own proposed use.” Palazzolo, 533 U.S. at 617. The
Federal Circuit has recognized this as well. See Hendler,
952 F.2d at 1378. Only the Ninth Circuit refuses to
acknowledge that taking an easement is a taking.

                               D

   Here, the plaintiffs have plausibly alleged that California
took their property—specifically, easements in gross—by
means of the Access Regulation.

    As the Court has explained, “the classic taking is one in
which the government directly appropriates private property
for its own use.” Horne v. Dep’t of Agric., 135 S. Ct. 2419,
2425 (2015) (cleaned up). “[I]n the case of real property,
such an appropriation is a per se taking that requires just
compensation.” Id. at 2426. Thus, the sole question is
22            CEDAR POINT NURSERY V. SHIROMA

whether the government has “appropriate[d] private
property for its own use.” Id. at 2425. If so, there “is a per
se taking that requires just compensation.” Id. at 2426.

    The right to enter onto the land of another to take some
action is the epitome of an easement in gross. See, e.g., Cal.
Civ. Code § 802; Nollan, 483 U.S. at 832 & n.1; Buehler v.
Or.-Wash. Plywood Corp., 17 Cal. 3d 520, 527 (1976);
LeDeit, 205 Cal. App. 2d at 159, 165–67. The Access
Regulation gives multiple union organizers the right to enter
onto employers’ private property to “meet[] and talk[] with
employees and solicit[] their support” for three hours a day,
120 days a year. Cal. Code Regs. tit. 8, § 20900(e). The
Access Regulation limits a union organizer’s rights to enter
private property to some extent, see Cal. Code Reg. tit. 8,
§ 20900(e), but that does not detract from the conclusion that
it appropriates easements; indeed, restrictions are a
quintessential feature of all easements. 9 Accordingly, we
have the “classic taking” described in Horne. 135 S. Ct.
at 2425. It is irrelevant that the property taken is an
easement—as opposed to some other type of real or personal
property—because the Takings Clause “protects ‘private
property’ without any distinction between different types.”
Id. at 2426. Because California has “appropriate[d] private
property for its own use,” there has been “a per se taking that
requires compensation.” Id. at 2425–26. No additional
showing is required. See id. Thus, the majority errs in
concluding that the plaintiffs fail to plausibly allege that their

     9
       See, e.g., Cal. Civ. Code § 806 (extent of an easement is
“determined by the terms of the grant, or the nature of the enjoyment by
which it was acquired”); Youngstown Steel Prods. Baker v. Pierce,
100 Cal. App. 2d 224, 226 (1950) (“No authority need be cited for the
well-known rule that the owner of a dominant tenement must use his
easement and rights in such a way as to impose as slight a burden as
possible on the servient tenement.”).
            CEDAR POINT NURSERY V. SHIROMA                  23

rights under the Takings Clause were violated. See Cedar
Point, 923 F.3d at 531–33.

                              III

   The majority’s failure to recognize that the plaintiffs
have stated a viable takings claim is based on several
fundamental errors.

                              A

    First, the majority ignores the plaintiffs’ claim that
California has directly appropriated their property and
instead suggests that the plaintiffs’ claim must fall into one
of “three categories of regulatory action[s]” which are
“functionally equivalent to the classic taking.” Id. at 531
(quoting Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536
(2005)). The three categories identified by the majority are:
(1) “where government requires an owner to suffer a
permanent physical invasion of her property—however
minor,” (2) where regulations “completely deprive an owner
of ‘all economically beneficial us[e]’ of her property,” and
(3) “the remainder of regulatory actions, which are governed
by the standards set forth in Penn Central Transportation
Co. v. New York City.” Id. (citations omitted). The majority
then focuses on the first of these three categories of
“regulatory actions,” characterized as a “permanent physical
invasion.” See id. at 531–34.

    This re-characterization of the plaintiffs’ claims is wrong
on its face. The plaintiffs’ complaint expressly alleges that
they have suffered what the majority refers to as a “classic
taking,” namely that “the access regulation . . . creates an
easement for union organizers to enter . . . private property
without consent or compensation,” causing an
“unconstitutional taking.” As the Supreme Court has
24          CEDAR POINT NURSERY V. SHIROMA

explained, separate and apart from any categories of
regulatory takings, “[t]he paradigmatic taking requiring just
compensation is a direct government appropriation . . . of
private property.” Lingle, 544 U.S. at 537. Thus, the
majority errs by attempting to rewrite the plaintiffs’ claim
that California has directly appropriated their property into a
claim that regulatory activity has gone too far by causing a
permanent occupation of their land. See Cedar Point,
923 F.3d at 533–34.

                              B

    The majority also errs in concluding that the Access
Regulation does not effect a taking because it “does not grant
union organizers a ‘permanent and continuous right to pass
to and fro’ such that the [plaintiffs’] property ‘may
continuously be traversed.’” Id. at 532. There is no support
for the majority’s claim that the government can appropriate
easements free of charge so long as the easements do not
allow for access “24 hours a day, 365 days a year.” Id.

    First, an easement need not allow for a “continuous
physical occupation” for it to be taken. It is well established
that an easement holder’s right to go onto property of another
exists regardless whether the easement holder permanently
occupies the property. Loretto itself recognizes that
Portsmouth Harbor, Causby, and Kaiser Aetna—cases in
which there was no permanent physical occupation—stand
for the proposition that the government must pay
compensation even if it “physically invades only an
easement in property.” Loretto, 458 U.S. at 433 (citation
omitted).     And Loretto recognizes that “[t]he one
incontestable case for compensation (short of formal
expropriation) seems to occur when the government
deliberately brings it about that its agents, or the public at
               CEDAR POINT NURSERY V. SHIROMA                           25

large, regularly use . . . a thing [such as an easement] 10 which
. . . was understood to be under private ownership.” Id.
at 427 n.5 (cleaned up) (quoting Frank I. Michelman,
Property, Utility & Fairness: Comments on the Ethical
Foundations of ‘Just Compensation’ Law, 80 Harv. L. Rev.
1165, 1184 (1967)).

    Similarly, Nollan held that imposing an easement across
a property owner’s beachfront property effectively gave rise
to a “permanent physical occupation,” as in Loretto, “even
though no particular individual [was] permitted to station
himself permanently upon the premises.” 483 U.S. at 832.
And, as the dissent in Nollan pointed out, “public passage
for a portion of the year would either be impossible or would
not occur on appellant’s property” due to “high-tide line
shifts throughout the year.” Id. at 854 (Brennan, J.,
dissenting). Put simply, the Supreme Court has never held
that a government has free rein to take easements, without
paying for them, so long as the easements do not allow for
access “24 hours a day, 365 days a year.” Cedar Point,
923 F.3d at 532. Thus, the majority errs by engrafting a
“continuous use” requirement onto the Takings Clause.

    Second, an easement need not be “permanent” for it to
be taken, contrary to the majority’s repeated invocation of

     10
        The law review article from which Loretto quotes makes clear that
the word “‘thing’ signifies any discrete, identifiable (even if incorporeal)
vehicle of economic value which one can conceive of as being owned,”
including “easements,” and that these “things” “can be affirmatively
expropriated by public authority in a manner analogous to its ‘taking’ of
a corporeal thing.” Michelman, supra at 1184 n.37. That is, even though
easements “[h]ave a conceptual existence but no physical existence,”
Incorporeal, Black’s Law Dictionary 884 (10th ed. 2014), they can be
affirmatively expropriated (i.e., taken) just like a piece of land or an
object.
26            CEDAR POINT NURSERY V. SHIROMA

that word. See Cedar Point, 923 F.3d at 531–34. In Causby,
the Court made clear that there was a taking even though the
trial court had not yet determined whether the “easement
taken [was] a permanent or a temporary one.” 328 U.S.
at 268; see also Ark. Game & Fish Comm’n v. United States,
568 U.S. 23, 33 (2012) (“[W]e have rejected the argument
that government action must be permanent to qualify as a
taking.”); First English Evangelical Church of Glendale v.
L.A. Cty., Cal., 482 U.S. 304, 329 (1987) (“A temporary
interference with an owner’s use of his property may
constitute a taking for which the Constitution requires that
compensation be paid.”). Thus, there is no basis for the
majority’s conclusion that the government can take
easements without paying compensation so long as the
easements do not meet the majority’s definition of
“permanent.”

    In holding that the plaintiffs’ claim fails because there is
no “permanent physical occupation,” the majority creates a
circuit split by contradicting the Federal Circuit’s decision
in Hendler. The Federal Circuit’s holding that activity
involving “temporally intermittent” intrusions onto private
property effects a taking, Hendler, 952 F.2d at 1377, is
inconsistent with the majority’s view that there is no taking
of an easement unless “random members of the public [can]
unpredictably traverse the[] property 24 hours a day,
365 days a year,” Cedar Point, 923 F.3d at 532. 11


     11
       As previously explained, see supra at 20 n.8, Hendler analyzed
the entry of the federal officials onto the land separately from the
government’s installation of the wells. Compare 952 F.2d at 1375–77
(analyzing the government’s placement of wells on the plaintiffs’
property), with id. at 1377–78 (analyzing the government’s entry onto
the plaintiffs’ land to install and service the wells). Accordingly, the
Concurrence errs in attempting to distinguish Hendler on the ground that
             CEDAR POINT NURSERY V. SHIROMA                        27

                                  C

     Finally, the majority blunders in relying on PruneYard
Shopping Center v. Robins, 447 U.S. 74 (1980), to support
its conclusion that the Access Regulation does not effect a
taking, see Cedar Point, 923 F.3d at 531–32. In PruneYard,
the appellants were owners of “a large commercial complex
that cover[ed] several city blocks, contain[ed] numerous
separate business establishments, and [was] open to the
public at large.” 447 U.S. at 83. The owners ordered a group
of high school students who were distributing literature and
soliciting signatures for a petition to leave the premises. Id.
at 77. The California Supreme Court held that the state
constitution protected speech and petitioning, even at
privately owned shopping centers, and therefore concluded
that the students were entitled to conduct their activity on the
private property. Id. at 78 (citing Robins v. Pruneyard
Shopping Ctr., 23 Cal. 3d 899, 910 (1979)). The U.S.
Supreme Court affirmed, characterizing the state
constitutional requirement as a regulatory restriction that did
not go so far as to constitute a taking. Id. at 82–85.

    According to the majority, PruneYard “contradict[s]”
the plaintiffs’ claim that the Access Regulation appropriates
their property, because PruneYard involved restrictions on a
property owner’s “right to exclude” individuals from
property and the Court held that there was no taking. Cedar
Point, 923 F.3d at 531–32. This reliance on PruneYard is
mistaken.

    PruneYard did not involve a state law that gave third
parties access to otherwise private property; rather, the

the Federal Circuit was considering only the permanent trespass caused
by the installation of the wells. Cf. Concurrence at 8–9.
28            CEDAR POINT NURSERY V. SHIROMA

owner in PruneYard “had already opened his property to the
general public.” Nollan, 483 U.S. at 832 n.1. Indeed,
PruneYard framed the issue as “whether state constitutional
provisions, which permit individuals to exercise free speech
and petition rights on the property of a privately owned
shopping center to which the public is invited, violate the
shopping center owner’s property rights under the Fifth . . .
Amendment.” 447 U.S. at 76–77 (emphasis added). Given
that the shopping center was open to the public, it is not
surprising that the parties did not argue, and the Supreme
Court did not consider, whether the state had appropriated
an easement by giving members of the public the right to
exercise their “state-protected rights of free expression and
petition” on the shopping center property. Id. at 83.

    The Supreme Court subsequently made clear that
PruneYard does not provide guidance for analyzing a
governmental appropriation of an easement. Dolan v. City
of Tigard distinguished the imposition of a permanent
recreational easement from the situation in PruneYard,
where the property was already open to the public and
“attracted more than 25,000 daily patrons.” 512 U.S. 374,
394 (1994); see also Nollan, 483 U.S. at 832 n.1
(distinguishing the appropriation of a beachfront easement
from the situation in PruneYard where the owner “had
already opened his property to the general public,”
individuals were not given permanent access to the property,
and there was no “classic right-of-way easement”). 12 And,
     12
       The word “permanent” has carried a variety of different meanings
in takings jurisprudence, and its meaning has changed over time. See
Causby, 328 U.S. at 267 (referring to “temporary” and “permanent”
easements); Loretto, 458 U.S. at 421 (referring to a “permanent physical
occupation”); Hendler, 952 F.2d at 1376 (“‘[P]ermanent’ does not mean
forever, or anything like it”); Ark. Game & Fish Comm’n, 568 U.S. at 33
(rejecting the “argument that government action must be permanent to
              CEDAR POINT NURSERY V. SHIROMA                        29

as Horne made clear, “limiting a property owner’s right to
exclude certain speakers from an already publicly accessible
shopping center did not take the owner’s property.” 135 S.
Ct. at 2429 (citing PruneYard, 447 U.S. at 83).

    Here, unlike in PruneYard, the plaintiffs’ property is not
“open to the public at large,” 447 U.S. at 83, and the
plaintiffs expressly alleged that the Access Regulation
appropriates easements. California has not merely regulated
the “right to exclude” certain persons from property that is
open to the public based on their speech, as in PruneYard;
rather, California has appropriated a state-defined property
right. Therefore, PruneYard is simply inapplicable: The
majority’s fails to recognize that PruneYard did not involve
the taking of easements but rather a restriction on a
landowner’s ability to prevent speech on land that was
already open to the public.

                                 IV

    “That rights in property are basic civil rights has long
been recognized,” Lynch v. Household Fin. Corp., 405 U.S.
538, 552 (1972), and like other civil rights must be zealously
protected from infringement by government. Here, the
plaintiffs allege that California has appropriated easements
and thus taken valuable property rights protected by the
Takings Clause. To say, as the majority does, that there has
not been a taking, “is to use words in a manner that deprives
them of all their ordinary meaning.” Nollan, 483 U.S. at 831.
By failing to give fair consideration to the plaintiffs’ actual
claims, the majority creates a circuit split, disregards binding


qualify as a taking”); Cedar Point, 923 F.3d at 533 (referring to a
“permanent per se taking”). But there has been no change in the Supreme
Court’s view that the taking of an easement, whether “temporary” or
“permanent,” constitutes a taking. Causby, 328 U.S. at 267.
30         CEDAR POINT NURSERY V. SHIROMA

Supreme Court precedent, and deprives property owners of
their constitutional rights. We should have taken this case
en banc to rectify this error.
