Legal Commentary

Preview of the Stop the Beach Renourishment Case

By Ilya Somin

I recently completed a preview of Stop the Beach Renourishment v. Walton County, an important property rights case which was argued today, for the ABA Supreme Court Preview. It doesn?t seem to be up on their website yet, but I have posted it here. Below is a brief excerpt:

Under Florida?s Beach and Shore Preservation Act..., the state government establish ?renourishment? projects to restore waterfront land that has become ?critically eroded.? Once the projects are complete, the Act gives the state title to any newly dry land that has been cleared as a result of the project?s pushing back the waterline. This deprives waterfront property owners of their previously existing right to ownership of land up to the ?mean high waterline? (MHWL). This is exactly what happened to the six waterfront property owners in Florida?s Walton County, whose holdings abutted a renourishment project established in the area. The property owners formed a group called Stop the Beach Renourishment, which is the petitioner in this case....

The Florida Supreme Court ruled against the property owners, holding that state law did not give them the right to
own all property up to the new MHWL created by the project.

The property owners now argue, in the U.S. Supreme Court, that the Florida court decision amounts to a ?judicial taking? that deprived them of property rights through a sudden and unexpected revision of state law by the state judiciary.
Previous precedents hold that even a small ?physical invasion? or occupation of a landowner?s property by legislation or executive action is a taking that requires compensation under the Fifth Amendment, which mandates that ?just compensation? be paid whenever property is taken for ?public use? .... However, the Supreme Court has never ruled on the issue of whether a deprivation of property that results from a state court decision reinterpreting state law might count as a taking. Thus, it is unclear whether the Takings Clause applies to so-called ?judicial takings.? The petitioners argue that the Supreme Court should hold that judicial takings do exist, and that they require compensation under the Fifth Amendment. As the petitioners? brief puts it ?[i]f a state, through its legislative or executive branches, cannot violate theFifth Amendment by taking property without paying compensation, why should the judicial branch be allowed to do so??

Ben Barros at PropertyProfblog has a thorough analysis of today?s oral argument. I generally agree with his conclusion that most of the justices agree with the idea that ?judicial takings? exist, but that there probably isn?t a majority in favor of the claim that one occurred in this case. If the Court does conclude that judicial takings exist, the really important part of the decision will be the standards the majority sets up for determining when one has occurred, a point I discuss in greater detail in the last part of the ABA Preview article.

UPDATE: There is a small but unfortunate imprecision in my ABA preview article, which says that ?Under Florida?s Beach and Shore Preservation Act..., the state government establish ?renourishment? projects to restore waterfront land that has become ?critically eroded.? In reality, the Act gives the state, in cooperation with local governments, the power to establish such renourishment projects, a power that is expected to be used. But the state is not actually compelled to establish projects in every waterfront area that has become ?critically eroded.? It would have been more accurate and less confusing had I used ?given the power? or ?permitted? rather than ?required.? This mistake doesn?t relate to the legal issues at stake in the case (whether the state was required to act as it did under the Act has no effect on the question of whether a taking occurred). But I regret my poor choice of words nonetheless.

UPDATE #2: A transcript of the oral argument is available here.

Full post as published by The Volokh Conspiracy on December 02, 2009 (boomark / email).