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Law360: Colo. Rancher Challenge To Farm Labor Law Moves To Denver

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By Daniel Ducassi ·  Listen to article

Law360 (October 18, 2023, 9:07 PM EDT) — Colorado Gov. Jared Polis has urged a Denver state judge to side with his administration over a rancher group challenging a state law requirement that agricultural employers allow workers access to service providers like doctors and lawyers, arguing the group can’t actually block the law’s enforcement.

The Polis administration argued in a motion for judgment on the pleadings last week that money — not equitable relief — is the only possible remedy for the Colorado Livestock Association’s allegations of regulatory takings.

The association, which represents a variety of livestock farmers and related companies, contended in a June lawsuit that the access provision in a 2021 farm labor law that applies even on private land amounts to an unconstitutional taking of its members’ property.

However, just because the claim by the association is constitutional in nature, it doesn’t follow that it can sue to have the law declared unconstitutional, the state argued.

“Unlike some other constitutional challenges, a takings claim may only be remedied by monetary compensation,” the Polis administration said. “Indeed, the remedy for a successful takings claim is built into the language of both the federal and state constitutions, which require ‘just compensation.'”

The state pointed to the U.S. Supreme Court‘s 2019 decision in Knick v. Township of Scott , arguing that justices “expressly clarified that injunctive relief remained unavailable to plaintiffs in takings cases.”

Even if the government unconstitutionally takes property without compensation, stopping the government from acting isn’t normally the right course for judges, the state said, quoting the high court’s conclusion in Knick that as long as a property owner has a way to get compensated after a taking, “governments need not fear that courts will enjoin their activities.”

The association cited the high court’s 2021 decision in Cedar Point Nursery et al. v. Hassid et al. , where a majority of justices concluded that a California law allowing labor unions to access certain areas of private farmland violated the Fifth Amendment’s takings clause. But Colorado said the court didn’t specifically address the proper remedy for that case, that the majority opinion “repeated the rule that compensation is the remedy for a taking” and the dissenting opinion explicitly said the only remedy in the case for the employers was proper payment.

The association’s argument fares no better under the Colorado Constitution, with a long line of state court precedent concluding that “compensation — not injunction — is the proper remedy for a takings claim.”

Instead of suing to block a law that allegedly results in a taking, property owners need to raise their claims in an eminent domain or inverse condemnation action, the state said.

And because the association hasn’t asked for money, but rather seeks to have the law declared void and block its enforcement, the state said there’s no remedy a judge can award.

The state also argued that the association doesn’t have standing to sue. The association hasn’t alleged that the organization itself has been injured, so it has to rely on what’s called associational standing, the state said. But to have such standing, it must be the case that neither the claim nor the remedy require participation by the association’s members, which isn’t the case here, the state said, “because the only possible remedy is compensation based on individualized proof offered by agricultural employers.”

A group of farms and ranches had previously filed its own challenge to the law, but dropped the case in February.

That earlier case included as intervenor defendants Colorado Legal Services and an agricultural worker, and both are also trying to intervene in the Colorado Livestock Association’s case against the state.

Since the bill became law, they said, the worker, who’s been in the industry for more than 20 years, “has had increased access to lawyers and health care workers, and her child’s teachers,” but worries employers will make it harder to get these services if the law goes away.

Attorney Kelsey Eberly of FarmSTAND, who represents Colorado Legal Services, told Law360 in an email Wednesday that the law’s access provision is critically important.

“Agricultural workers in Colorado are often isolated, vulnerable migrant workers and immigrants who face significant barriers to accessing these basic services, because of their long working hours and because they may live in labor camps on their employer’s property and lack reliable transportation,” Eberly said. “The provision the Livestock Association challenges is important to preserve because agricultural employers have often blocked and intimidated service providers attempting to meet with agricultural workers, including Colorado Legal Services.”

Representatives for the state and the Colorado Livestock Association declined to comment.

The Colorado Livestock Association is represented by Christopher P. Carrington and Ruth M. Moore of Richards Carrington LLC.

Polis and the state are represented by Mike Kotlarczyk, Krista Maher, John August Lizza and Philip J. Weiser of the Office of the Colorado Attorney General.

Colorado Legal Services is represented by Valerie L. Collins and David H. Seligman of Towards Justice, Trent Taylor of Farmworker Justice and Kelsey Eberly and Nathan Leys of FarmSTAND.

The agricultural worker is represented by Jenifer Rodriguez of Colorado Legal Services.

The case is Colorado Livestock Association v. State of Colorado et al., case number 2023CV495, in the 2nd Judicial District of Colorado.

–Editing by Linda Voorhis.

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