Stop the Beach Renourishment: U.S. Supreme Court Grapples with Judicial Takings Case

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SandBar 9:2, July, 2010 Recommended citation: King, Melanie, Stop the Beach Renourishment: U.S. Supreme Court Grapples with judicial Takings Case, 9:2 SandBar 8 (2010). Stop the Beach Renourishment U.S. Supreme Court Grapples with Judicial Takings Case Melanie King, J.D.1 In 2005 the Florida Department of Environmental Protection (FDEP) issued a permit to restore 6.9 miles of critically eroded beaches and dunes under Florida’s Beach and Shore Preservation Act (BSPA).2 The nonprofit organization Stop the Beach Renourishment, comprised of six beachfront homeowners, objected to the renourishment project and brought a suit claiming that the process for restoring the beach deprived littoral property owners of their property rights without just compensation. The Florida Supreme Court rejected those claims. The property owners appealed to the U.S. Supreme Court, arguing that the BSPA resulted in an unconstitutional taking and that the Florida Supreme Court’s decision constituted a judicial taking. The U.S. Supreme Court affirmed the Florida Supreme Court’s decision and held that it did not constitute a judicial taking.3 However, the Court was split on the question of a judicial taking, or whether it is possible for a court to take property without just compensation. Four justices supported the conclusion that a court can take property without just compensation by overturning an established property right. Two justices concluded that this case does not require the Court to determine when a judicial decision constitutes a taking, as due process principles are sufficient to support the finding. Two other justices found that it is unnecessary to decide more than that no judicial taking occurred here, expressing concern over the difficult procedural questions that would be raised by the plurality’s decision. Background Under the Florida Constitution, the wet sand beach between the mean high water line (MHWL) and low water lines are held in trust for the public, which the state has a duty to protect under the public trust doctrine. The boundary between public and private lands changes with gradual and imperceptible changes to the shoreline, known as accretion, reliction, or erosion.4 When a beach restoration project is begun under the BSPA, the common law no longer operates “to increase or decrease the proportions of any upland property lying landward of such line, either by accretion or erosion” and an erosion control line (ECL) becomes the fixed property line between private and public lands, which is generally set at the MHWL.5 Any land created seaward of the ECL during the project becomes the property of the state, regardless of the effect on the MHWL. In 2005 the FDEP issued a permit to restore eroded shoreline in Walton County, Florida, and several homeowners challenged the project as a taking of their littoral property rights. Under Florida common law, littoral property owners have certain property rights associated with their littoral property. “These include the right of access to the water, the right to use the water for certain purposes, the right to an unobstructed view of the water, and the right to receive accretions and relictions to the littoral property.”6 The property owners argued that because the BPSA allows the state to fill beaches beyond the MHWL and grants the state ownership of the newly created land, the BSPA unconstitutionally takes littoral property owners’ property rights. The lower courts agreed with the property owners. In 2008 the Florida Supreme Court heard the case and held that the BPSA did not unconstitutionally take the homeowners’ property rights without just compensation.7 The court held that because common law allows the state to fill lands up to the MHWL after events such as hurricanes that cause sudden and perceptible changes to the shoreline, the BSPA is consistent with Florida common law property principles and therefore does not unconstitutionally deprive landowners of their property rights. In its decision, the Florida Supreme Court ruled that the right of contact is ancillary to the right of access, and that right remained intact. The court also relied on the difference between avulsions and accretions, as discussed above, in coming to its decision. On appeal to the U.S. Supreme Court, petitioners argued that by departing from settled common law property principles, the Florida Supreme Court decision itself effected a taking of property. Holding All eight participating justices affirmed the Florida Supreme Court’s decision and agreed that the court’s decision did not constitute a judicial taking.8 In coming to this conclusion, the Court, in a decision written by Justice Scalia, reviewed Florida law and found that the BSPA did not depart from Florida common law such as to take property without just compensation. The Court noted that under Florida law, sudden and perceptible shoreline changes, known as avulsions, are treated differently from accretions. Under Florida common law “regardless of whether an avulsive event exposes land previously submerged or submerges land previously exposed, the boundary between littoral property and sovereign land does not change; it remains (ordinarily) what was the mean high-water line before the event.”9 Thus, “when a new strip of land has been added to the shore by avulsion, the littoral owner has no right to subsequent accretions. Those accretions no longer add to his property, since the property abutting the water belongs not to him but to the State.”10 The Court, examining past precedents, held that the “the right [of littoral property owners] to accretions [is] subordinate to the State’s right to fill.”11 However, the Court did not come to a definite conclusion on the most important question presented in the case: whether the decision of a court which departs from established rules of property law constitutes a judicial taking. Judicial Takings There was no majority opinion regarding whether a court decision can constitute a judicial taking. Justice Scalia, joined by Chief Justice Roberts, Justice Alito, and Justice Thomas, argued that the act of a court can constitute a judicial taking. “If a legislature or a court declare that what was once an established right of private property no longer exists, it has taken that property, no less than if the state had physically appropriated it or destroyed its value by regulation.”12 Justice Scalia wrote that the Takings Clause is “concerned simply with the act, and not with the governmental actor.”13 Justice Scalia relied on several previous cases that suggest a judicial decision can constitute a taking but do not address the question directly.14 The plurality conceded that the Framers of the Constitution probably did not foresee the Takings Clause applying to judicial decisions, but “what counts is not what they [the Framers] envisioned, but what they wrote.15 Justice Kennedy, joined by Justice Sotomayor, concurred with Justice Scalia’s analysis of Florida common law and with the holding of the case. However, they argued that the case “does not require the Court to determine whether, or when, a judicial decision determining the rights of property owners can violate the Takings Clause.”16 Justice Kennedy argued that due process principles are sufficient for deciding this case, noting that “[t]he Due Process Clause, in both its substantive and procedural aspects, is a central limitation upon the exercise of judicial power. And this Court has long recognized that property regulations can be invalidated under the Due Process Clause.”17 This concurrence also emphasized that the right to take property for public use is a political matter for the Executive and Legislative branches. However, Kennedy’s opinion does not preclude the Court from answering the judicial takings question in the future: “If and when future cases show that the usual principles . . . that constrain the judiciary like due process are somehow inadequate to protect property owners, then the question of when a judicial decision can effect a taking would be properly presented.”18 Justice Breyer, joined by Justice Ginsberg, also concurred with the plurality’s analysis of Florida common law and with the holding of the case, but found that “the plurality unnecessarily addresses questions of constitutional law that are better left for another day.”19 Justice Breyer expressed concern that the plurality’s opinion will “invite a host of federal takings claims without the mature consideration of potential procedural or substantive legal principles that might limit federal interference in matters that are primarily the subject of state law.”20 Conclusion While the implications of this case are unclear, it is likely that this case will be read narrowly to simply affirm the Florida Supreme Court’s decision that the BSPA does not unconstitutionally take property without just compensation. The answer to the question of whether a judicial decision can constitute a taking of property without just compensation remains unclear. As with Rapanos v. United States, where there is no majority opinion, the controlling opinion will be the decision that changes the settled law the least.21 In the instant case, Justice Breyer’s decision, which leaves the question of judicial takings open for another day, will likely control. However, the plurality’s opinion provides strong dicta regarding the ability of a judicial decision to rise to the level of a judicial taking by overturning an established property right. Endnotes 1. National Marine Fishery Service Office of International Affairs, Silver Spring, MD. The author attended the oral argument for this case on December 2, 2009. 2. The Beach and Shore Preservation Act is codified at Fla. Stat. §§ 161.011-161.45. 3. Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection et al., 560 U.S. ___ (2010). 4. Reliction is the increase in land by the gradual and imperceptible withdrawal of a body of water. Accretion is the gradual and imperceptible accumulation of land along a shoreline. Erosion is the gradual and imperceptible loss of land from a shoreline. See Walton County v. Stop the Beach Renourishment, Inc., No. SC06-1449 (Fla. S.Ct., Sept. 29, 2008) (citations omitted). For simplicity’s sake, the U.S. Supreme Court in this case referred to accretions and relictions collectively as accretions, and this article does the same. 5. FLA. STAT. § 161.191. 6. Stop the Beach Renourishment, 560 U.S. ___, Opinion of Scalia, J. at 2. 7. See Melanie King, Florida’s Beach Renourishment Act Upheld, 7:4 SandBar 6 (2009). 8. Justice Stevens did not participate in the decision of this case. 9. Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection et al., 560 U.S. ___, Opinion of Scalia, J. at 3 (2010). 10. Id. at 3-4 (emphasis in original). 11. Id. at 27. 12. Id. at 10 (emphasis in original). 13. Id. at 8. The text of the Takings Clause is as follows: “nor shall private property be taken for public use, without just compensation.” U.S. Const. Amendment V. 14. i.e. PruneYard Shopping Center v. Roberts, 447 U.S. 74 (1980) (applying a takings law analysis to hold that a California Supreme Court decision that private property owners did not have to accord the freedoms of speech, the press, and to petition the government did not violate the Constitution) and Webb’s Fabulous Pharmacies v. Beckwith, 449 U.S. 155 (1980) (holding that a Florida Supreme Court decision that interest from an account for the satisfaction of claims is “public money” constituted a taking). 15. See Stop the Beach Renourishment, 560 U.S. ___, Opinion of Scalia, J.at 17. 16. Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection et al., 560 U.S. ___, Opinion of Kennedy, J. at 1 (2010). 17. Id. at 3. 18. Id. at 10. 19. Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection et al., 560 U.S. ___, Opinion of Breyer, J. at 1 (2010). 20. Id. at 2. 21. Rapanos v. United States, 574 U.S. 715 (2006)(where, in the absence of a majority decision, Justice Kennedy’s concurrence setting forth the “significant nexus” test for whether waters fall under the jurisdiction of the Clean Water Act controls). See Stephanie Showalter, Supreme Court Fails to Clarify Limits of Corps’ Wetland Jurisdiction, 5:2 SandBar 1 (2006).
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SandBar 9:2, July, 2010
Recommended citation: King, Melanie, Stop the Beach Renourishment: U.S. Supreme Court Grapples with judicial Takings Case, 9:2 SandBar 8 (2010).

Stop the Beach Renourishment
U.S. Supreme Court Grapples with Judicial Takings Case

Melanie King, J.D.1

In 2005 the Florida Department of Environmental Protection (FDEP) issued a permit to restore 6.9 miles of critically eroded beaches and dunes under Florida’s Beach and Shore Preservation Act (BSPA).2 The nonprofit organization Stop the Beach Renourishment, comprised of six beachfront homeowners, objected to the renourishment project and brought a suit claiming that the process for restoring the beach deprived littoral property owners of their property rights without just compensation. The Florida Supreme Court rejected those claims.
    The property owners appealed to the U.S. Supreme Court, arguing that the BSPA resulted in an unconstitutional taking and that the Florida Supreme Court’s decision constituted a judicial taking. The U.S. Supreme Court affirmed the Florida Supreme Court’s decision and held that it did not constitute a judicial taking.3 However, the Court was split on the question of a judicial taking, or whether it is possible for a court to take property without just compensation. Four justices supported the conclusion that a court can take property without just compensation by overturning an established property right. Two justices concluded that this case does not require the Court to determine when a judicial decision constitutes a taking, as due process principles are sufficient to support the finding. Two other justices found that it is unnecessary to decide more than that no judicial taking occurred here, expressing concern over the difficult procedural questions that would be raised by the plurality’s decision.

Background
Under the Florida Constitution, the wet sand beach between the mean high water line (MHWL) and low water lines are held in trust for the public, which the state has a duty to protect under the public trust doctrine. The boundary between public and private lands changes with gradual and imperceptible changes to the shoreline, known as accretion, reliction, or erosion.4
    When a beach restoration project is begun under the BSPA, the common law no longer operates “to increase or decrease the proportions of any upland property lying landward of such line, either by accretion or erosion” and an erosion control line (ECL) becomes the fixed property line between private and public lands, which is generally set at the MHWL.5 Any land created seaward of the ECL during the project becomes the property of the state, regardless of the effect on the MHWL.
    In 2005 the FDEP issued a permit to restore eroded shoreline in Walton County, Florida, and several homeowners challenged the project as a taking of their littoral property rights. Under Florida common law, littoral property owners have certain property rights associated with their littoral property. “These include the right of access to the water, the right to use the water for certain purposes, the right to an unobstructed view of the water, and the right to receive accretions and relictions to the littoral property.”6 The property owners argued that because the BPSA allows the state to fill beaches beyond the MHWL and grants the state ownership of the newly created land, the BSPA unconstitutionally takes littoral property owners’ property rights. The lower courts agreed with the property owners.
    In 2008 the Florida Supreme Court heard the case and held that the BPSA did not unconstitutionally take the homeowners’ property rights without just compensation.7 The court held that because common law allows the state to fill lands up to the MHWL after events such as hurricanes that cause sudden and perceptible changes to the shoreline, the BSPA is consistent with Florida common law property principles and therefore does not unconstitutionally deprive landowners of their property rights.
      In its decision, the Florida Supreme Court ruled that the right of contact is ancillary to the right of access, and that right remained intact. The court also relied on the difference between avulsions and accretions, as discussed above, in coming to its decision. On appeal to the U.S. Supreme Court, petitioners argued that by departing from settled common law property principles, the Florida Supreme Court decision itself effected a taking of property.

Holding
All eight participating justices affirmed the Florida Supreme Court’s decision and agreed that the court’s decision did not constitute a judicial taking.8 In coming to this conclusion, the Court, in a decision written by Justice Scalia, reviewed Florida law and found that the BSPA did not depart from Florida common law such as to take property without just compensation.
      The Court noted that under Florida law, sudden and perceptible shoreline changes, known as avulsions, are treated differently from accretions. Under Florida common law “regardless of whether an avulsive event exposes land previously submerged or submerges land previously exposed, the boundary between littoral property and sovereign land does not change; it remains (ordinarily) what was the mean high-water line before the event.”9 Thus, “when a new strip of land has been added to the shore by avulsion, the littoral owner has no right to subsequent accretions. Those accretions no longer add to his property, since the property abutting the water belongs not to him but to the State.”10
      The Court, examining past precedents, held that the “the right [of littoral property owners] to accretions [is] subordinate to the State’s right to fill.”11 However, the Court did not come to a definite conclusion on the most important question presented in the case: whether the decision of a court which departs from established rules of property law constitutes a judicial taking.

Judicial Takings
There was no majority opinion regarding whether a court decision can constitute a judicial taking. Justice Scalia, joined by Chief Justice Roberts, Justice Alito, and Justice Thomas, argued that the act of a court can constitute a judicial taking. “If a legislature or a court declare that what was once an established right of private property no longer exists, it has taken that property, no less than if the state had physically appropriated it or destroyed its value by regulation.”12 Justice Scalia wrote that the Takings Clause is “concerned simply with the act, and not with the governmental actor.”13 Justice Scalia relied on several previous cases that suggest a judicial decision can constitute a taking but do not address the question directly.14 The plurality conceded that the Framers of the Constitution probably did not foresee the Takings Clause applying to judicial decisions, but “what counts is not what they [the Framers] envisioned, but what they wrote.15
Justice Kennedy, joined by Justice Sotomayor, concurred with Justice Scalia’s analysis of Florida common law and with the holding of the case. However, they argued that the case “does not require the Court to determine whether, or when, a judicial decision determining the rights of property owners can violate the Takings Clause.”16 Justice Kennedy argued that due process principles are sufficient for deciding this case, noting that “[t]he Due Process Clause, in both its substantive and procedural aspects, is a central limitation upon the exercise of judicial power. And this Court has long recognized that property regulations can be invalidated under the Due Process Clause.”17 This concurrence also emphasized that the right to take property for public use is a political matter for the Executive and Legislative branches. However, Kennedy’s opinion does not preclude the Court from answering the judicial takings question in the future: “If and when future cases show that the usual principles . . . that constrain the judiciary like due process are somehow inadequate to protect property owners, then the question of when a judicial decision can effect a taking would be properly presented.”18
Justice Breyer, joined by Justice Ginsberg, also concurred with the plurality’s analysis of Florida common law and with the holding of the case, but found that “the plurality unnecessarily addresses questions of constitutional law that are better left for another day.”19 Justice Breyer expressed concern that the plurality’s opinion will “invite a host of federal takings claims without the mature consideration of potential procedural or substantive legal principles that might limit federal interference in matters that are primarily the subject of state law.”20

Conclusion
While the implications of this case are unclear, it is likely that this case will be read narrowly to simply affirm the Florida Supreme Court’s decision that the BSPA does not unconstitutionally take property without just compensation. The answer to the question of whether a judicial decision can constitute a taking of property without just compensation remains unclear. As with Rapanos v. United States, where there is no majority opinion, the controlling opinion will be the decision that changes the settled law the least.21 In the instant case, Justice Breyer’s decision, which leaves the question of judicial takings open for another day, will likely control. However, the plurality’s opinion provides strong dicta regarding the ability of a judicial decision to rise to the level of a judicial taking by overturning an established property right.

Endnotes
1.   National Marine Fishery Service Office of International Affairs, Silver Spring, MD. The author attended the oral argument for this case on December 2, 2009.
2.   The Beach and Shore Preservation Act is codified at Fla. Stat. §§ 161.011-161.45.
3.   Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection et al., 560 U.S. ___ (2010).
4.    Reliction is the increase in land by the gradual and imperceptible withdrawal of a body of water. Accretion is the gradual and imperceptible accumulation of land along a shoreline. Erosion is the gradual and imperceptible loss of land from a shoreline. See Walton County v. Stop the Beach Renourishment, Inc., No. SC06-1449 (Fla. S.Ct., Sept. 29, 2008) (citations omitted). For simplicity’s sake, the U.S. Supreme Court in this case referred to accretions and relictions collectively as accretions, and this article does the same.
5.   FLA. STAT. § 161.191.
6.  Stop the Beach Renourishment, 560 U.S. ___, Opinion of Scalia, J. at 2.
7.  See Melanie King, Florida’s Beach Renourishment Act Upheld, 7:4 SandBar 6 (2009).
8.   Justice Stevens did not participate in the decision of this case.
9.   Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection et al., 560 U.S. ___, Opinion of Scalia, J. at 3 (2010).
10. Id. at 3-4 (emphasis in original).
11. Id. at 27.
12. Id. at 10 (emphasis in original).
13. Id. at 8. The text of the Takings Clause is as follows: “nor shall private property be taken for public use, without just compensation.” U.S. Const. Amendment V.
14. i.e. PruneYard Shopping Center v. Roberts, 447 U.S. 74 (1980) (applying a takings law analysis to hold that a California Supreme Court decision that private property owners did not have to accord the freedoms of speech, the press, and to petition the government did not violate the Constitution) and Webb’s Fabulous Pharmacies v. Beckwith, 449 U.S. 155 (1980) (holding that a Florida Supreme Court decision that interest from an account for the satisfaction of claims is “public money” constituted a taking).
15. See Stop the Beach Renourishment, 560 U.S. ___, Opinion of Scalia, J.at 17.
16. Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection et al., 560 U.S. ___, Opinion of Kennedy, J. at 1 (2010).
17. Id. at 3.
18. Id. at 10.
19. Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection et al., 560 U.S. ___, Opinion of Breyer, J. at 1 (2010).
20. Id. at 2.
21. Rapanos v. United States, 574 U.S. 715 (2006)(where, in the absence of a majority decision, Justice Kennedy’s concurrence setting forth the “significant nexus” test for whether waters fall under the jurisdiction of the Clean Water Act controls). See Stephanie Showalter, Supreme Court Fails to Clarify Limits of Corps’ Wetland Jurisdiction, 5:2 SandBar 1 (2006).