(CN) — Colorado’s Agricultural Workers’ Rights law gives would-be trespassers unfettered access to employers’ private property in violation of their Fifth Amendment rights, according to a lawsuit filed by six farmers and ranchers against the state Department of Labor and Employment on Tuesday.
"Under the Fifth and Fourteenth Amendments, plaintiffs have a right to be free from laws that take private property for public use without providing a mechanism for awarding just compensation,” the farmers say in their 29-page lawsuit. “Defendants are charged with enforcing the access provisions, which physically take an interest in private property, but afford agricultural employers no means of obtaining just compensation for that per se taking."
Governor Jared Polis signed the Agricultural Workers’ Rights act into law on June 25, 2021. The bill was was sponsored by two Democrats in the state Senate and two in the House, including current 8th Congressional District candidate Yadria Caraveo.
The Colorado Department of Labor and Employment adopted related rules to enforce the law this past month.
In addition to creating “a wide variety of unprecedented employment-related obligations” for ranchers and farmers, the new law prohibits employers from interfering “with an agricultural worker's reasonable access to key service providers at any location during any time in which the agricultural worker is not performing compensable work.”
Key service providers include health care workers, educators, attorneys, legal advocates, government officials and clergy members, as well as “any other service provider to which an agricultural worker may need access.”
The law also gives workers the ability to access service providers while working overtime hours, if they are unable to access services at other times.
Employers providing housing cannot blocking visitor access to worker housing. Employers that provide transportation must also provide transportation for workers to “access basic necessities, conduct financial transactions and meet with key service providers" once a week.
Located in Palisade on the state's Western Slope, Talbott’s Mountain Gold grows apples, grapes and peaches across 550 acres. The farm employs and houses 30 to 110 workers throughout growing and harvest seasons. The farm reported it does not limit worker access to visitors.
"Talbott Farms challenges the Colorado Access Provisions because they appropriate its right to exclude from its orchards, vineyards and packing houses individuals who, but for the access provisions, would be trespassers,” the farmers claim in the lawsuit.
Talbott also fears the practice would interfere with independent auditing processes the farm undergoes to meet Good Agricultural Practices, Good Handling Practices, and Global Food Safety Initiative benchmarks.
Owners of Blaine’s Tomatoes & Farm, near Grand Junction in the southwest corner of the state, worry unannounced service providers will introduce diseases to their fragile greenhouses, including the virulent tomato brown rugose fruit virus.
Representing businesses from Colorado’s Eastern Plains, other plaintiffs include Box Elder Ranch, which raises beef and bison in Yuma County, Marc Arnusch Farms, which grows wheat, barley and corn in Keenseburg, and Mauch Farms in Lamar.
In addition to spreading disease and interfering with certification, plaintiffs worry about irrigation system interference, and the safety of service providers around farm equipment and pesticides.
The plaintiffs lean on the 2021 U.S. Supreme Court decision in Cedar Point Nursery v. Hassid, which struck down a similar California law after finding “access regulation [that] appropriates a right to invade [a] growers’ property . . . constitutes a per se physical taking.”
The California law required approval from the state’s Agricultural Labor Relations Board and notice be given to the landowner. Since Colorado’s law has neither restriction, the farmers hope to see it struck down.
The farmers and ranchers ask the court to declare the access portions of the law unconstitutional and to award attorneys’ fees. They are represented by Denver attorney Kevin Paul of Range PC.
A representative from Polis’ office declined to comment on pending litigation.
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