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Supreme Court rules fixing of coastal boundaries not 'taking'

By Hillary Stemple

[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled [opinion, PDF] in Stop the Beach Renourishment, Inc. v. Florida Department of Environment Protection [Cornell LII backgrounder] that the state of Florida did not "take" property without just compensation in violation of the Fifth Amendment [text] where the state permanently fixed property boundaries as part of a beachfront restoration project. The petitioners in the case argued [JURIST report] that coastal property owners are entitled to two easements, the right to have their land touch the water, and the right to gain property through coastal expansion. They argued that the practice of adding sand to prevent beach erosion, as authorized by Florida's Beach and Shore Preservation Act [text], effectively ended the easements in violation of Florida common law. They also argued that the practice of taking land was unconstitutional under the Fifth Amendment. Justice Antonin Scalia announced the judgment of the court, upholding the Florida Supreme Court decision [opinion, PDF], stating:

There is no taking unless petitioner can show that, before the Florida Supreme Court's decision, [coastal] property owners had rights to future [coastal expansion] and contact with the water superior to the State's right to fill in its submerged land. Though some may think the question close, in our view the showing cannot be made.

The court was unified in its holding, but there was a four to four split on the question of whether the Fifth Amendment applies to judicial "takings." Justice Scalia was joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito in holding that the Fifth Amendment clause against "taking" without just compensation applies to the judicial branch as well as the legislative and executive branches. Justice Anthony Kennedy was joined by Justice Sonia Sotomayor in concluding that the court did not need to reach the issue of judicial taking in order to reach their decision on the case. Justice Stephen Breyer was joined by Justice Ruth Bader Ginsburg in concluding that such complex questions of constitutional law need not be decided to reach a conclusion on this case. Justice John Paul Stevens took no part in the ruling.

The court originally granted certiorari [JURIST report] in the case to determine the constitutional question of whether the taking of land by the judiciary was a violation of due process. During oral arguments, counsel for the US argued as amicus curiae on behalf of the respondents that "what has happened here is the State has exercised, not just sovereign regulatory rights; it has exercised critical sovereign proprietary rights."

Full post as published by JURIST - The Paper Chase on June 17, 2010 (boomark / email).