June 17, 2010

Supreme Court Decides Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection

On June 17, 2010, the Supreme Court decided Stop the Beach Renourishment v. Florida Department of Environmental Protection, No. 08-1151, holding that Florida's statutory scheme for rebuilding eroded beaches and maintaining them against future erosion does not amount to an uncompensated taking of the property of beachfront-property owners. The Court was equally divided on, and therefore could not resolve, a second question presented by the case—whether a court decision declaring that a previously established private property right no longer exists works a taking in violation of the Takings Clause of the Constitution.

Under Florida common law, the state owns in trust for the public all land that is permanently submerged beneath navigable waters. The boundary between this public land and the property of those who own the property immediately adjacent to the shore, known as "littoral owners," is the mean high-water line. The littoral owner's title also includes any gradual additions to the property at the waterline, which are known as "accretions." In 1961, the Florida Beach and Shore Preservation Act established a program for depositing sand on eroded beaches and maintaining the deposited sand, under which the state sets a fixed "erosion-control line" to replace the fluctuating mean high-water line as the boundary between littoral and state property on restored beaches. Thereafter, any accretions beyond the erosion-control line belong to the state, not the littoral owner.

Littoral owners in several Florida municipalities in which beach-restoration programs were planned sued to block the application of the statute, claiming that it eliminated their rights to receive future accretions to their property and to have direct contact between their property and the water, and that it therefore amounted to a taking for which compensation was required under the Takings Clause of the Constitution. The Florida Court of Appeals agreed and enjoined the projects, but the Florida Supreme Court reversed, holding that the littoral owners did not own the property that they claimed was being taken.

The Supreme Court affirmed. In a portion of the opinion in which all justices who participated in deciding the case joined, it held that, under Florida law, the sudden exposure of previously submerged land resulting from the state's filling of previously submerged seabed was an "avulsion," the ownership of which belonged at common law to the state, rather than an "accretion" that belonged to the littoral owner. Because state law did not distinguish between naturally occurring avulsions and those that were caused by the state itself, the littoral owners' right to accretions was subordinate to the state's right to fill, and no taking occurred. The Florida Supreme Court did not contravene established property law by relying on these principles to reject the littoral owners' claim that they had a property right to have the boundary always remain at the mean high-water line.

The Court was unable to resolve the related question of whether a taking occurs when a court declares that what was once an established right of private property no longer exists. In a portion of the Court's opinion in which only three other justices joined, Justice Scalia suggested that the Takings Clause applies to all state actions that effectively achieve a transfer of property by state action, including those that recharacterize as public property what previously was recognized to be private property. This includes, he said, recharacterizations made by judicial decision, which are not entitled to special treatment. In two separate opinions, Justice Kennedy (joined by Justice Sotomayor) and Justice Breyer (joined by Justice Ginsburg) stated that this issue need not be resolved to decide this case and that it therefore should not be addressed now.

Justice Scalia delivered the opinion of the Court, in which Chief Justice Roberts and Justices Thomas and Alito joined entirely, and Justices Kennedy, Ginsburg, Breyer, and Sotomayor joined in part. Justice Kennedy filed an opinion concurring in part and concurring in the judgment, in which Justice Sotomayor joined. Justice Breyer filed an opinion concurring in part and concurring in the judgment, in which Justice Ginsburg joined. Justice Stevens took no part in the decision of the case.

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