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

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Argued December 2, 2009.

Authorship: Elisabeth Oppenheimer of Stanford Law Schoo

Docket: 08-1151

Issue: Whether the state’s legislation to restore storm-eroded beaches along the ocean or lakeshores, modifying the private property boundary line, constitutes a judicial taking or violates the due process clause

Contents

Briefs and Documents

Oral Argument

Transcript (December 2, 2009)

Merits Briefs

Amicus Briefs

Certiorari-Stage Documents

Oral Argument Recap

Analysis

Lyle Denniston originally wrote the following for SCOTUSblog:

The last time the Supreme Court went out of its way to correct the errant ways of the Florida Supreme Court was nine years ago — in Bush v. Gore. That still-controversial precedent did not get mentioned during oral argument on Wednesday, but it may well have been in the background as the Justices again closely parsed the work of that state’s highest tribunal. This time, though, most of them came away seemingly reluctant to conclude that the Florida court does not know what it is doing. And, though some were tempted to do just that, it did not appear that five were, as the Court heard Stop the Beach Renourishment v. Florida.

The constitutional issue that looms in this case is one the Court has often heard about but never before agreed to consider: is there such a thing as a “judicial taking” — a court decision that, in fact, seizes property for public use without paying for it? Justice Antonin Scalia, whom some property law experts see as eager to find such a “taking,” emerged Wednesday as sympathetic to that idea, but still a bit skeptical. Sharing some of his sentiments, in varying degrees of intensity, were Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr.

Even assuming they feel that way, though, could that perception draw five votes? (Even though only an eight-Justice Court will be deciding this case, because Justice John Paul Stevens — a Florida property owner — took himself out of the case, it still would take five votes to overturn the state Supreme Court ruling at issue.)

To reach that result, the Justices seemed to understand, they would have to look closely into the history of property rights under Florida state law, and then conclude that the state Supreme Court seriously misinterpreted those rights in ruling against beachfront property owners in Walton County who claim that some of their rights have been taken away without compensation. As Justice Anthony M. Kennedy (sure to hold a crucial vote) put it, “we have to become real experts in Florida law” before they could conclude that the state court lacked any fair basis in state law for its ruling.

And, in another revealing comment, Kennedy seemed to be saying that, after reading the state court’s opinion, he could find in it a sufficient grounding in state law principles. If Kennedy is actually persuaded of that, it would seem, he would never get to the issue of whether a court ruling can constitute an unconstitutional “taking.” He also appeared uncertain over how to craft a meaningful constitutional standard for finding a “judicial taking.” He asked, rhetorically, “would we just find all sorts of adjectives” to characterize a state court’s reading of its own law before the Justices would allow a federal court to second-guess it?

At the same time, Kennedy did display some concern (prompted by some slippery-slope questioning by Justice Alito) that if state governments were left largely free to re-arrange how beachfront property could be used or developed, existing owners’ rights would be seriously impaired. But that appeared to be mainly a worry over what state agencies, not state courts, would do with a state’s beaches.

For all the sympathy that the Walton County beachfront owners drew from some members of the Court, they got none to speak of from Justices Stephen G. Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor. Bluntly, both Breyer and Sotomayor told the owners’ lawyer that his clients had actually lost nothing at all when the state filled in beach that had been eroded by hurricanes. Ginsburg appeared to be deeply skeptical of even the suggestion that the state court had taken the owners’ rights, implying that they were on the right track when they challenged actions of the state legislature, before switching targets to challenge the state court.

Even Justice Scalia, whose initial comments early in the argument seemed to place him definitely on the property owners’ side, developed a bit of his own skepticism as the argument moved along. He suggested that those owners might well have benefitted significantly from beach-restoration projects, so perhaps those were not such a “bad idea” after all.

There was one indication that, for all of the difficulty the Court might see in wrestling with the “judicial taking” concept, the Justices were serious about considering that question this time. That indication came in the aggressive questioning from the bench of the federal government’s lawyer, Deputy Solicitor General Edwin S. Kneedler. In the case to represent the government as amicus supporting the state of Florida’s “sovereign interests” in protecting its own beaches, Kneedler’s entire argument was that the Court simply need not even consider the “taking” question and, if it did, to find absolutely no basis for it in this particular dispute.

The sharpest retort came from the Chief Justice: “Mr. Kneedler, that’s a clever ploy. We’re talking about judicial takings and you say, don’t look at what the court did, look at what the legislature did. That changes the whole ball game.”

Moreover, Kneedler had no real answer when pressed to suggest why the state Supreme Court had failed to cite the one precedent in state property law that would most support the conclusion it drew. That, said the government lawyer, was indeed surprising.

If it should turn out that the Court casts a 4-4 tie vote when it casts its first tally on the case, that result could be announced quickly — perhaps as early as next week. That would uphold the state court ruling, without an opinion and without setting a precedent. The notion of “judicial taking” would then have to await another day and a different case.

Commentary

Elisabeth Oppenheimer originally wrote the following for SCOTUSblog:

Here’s a little more detail on the Florida law that is likely to decide the outcome of Stop the Beach Renourishment, Inc. v. Florida. Justice Kennedy explained that “we have to become real experts in Florida law” to decide the judicial takings question, and the Court spent most of the argument doing just that.

The most important cases are the inscrutable Martin v. Busch and the more straightforward Board of Trustees v. Sand Key Associates. Sand Key is important for the landowners because it states their key proposition: littoral rights include the right to have one’s property contact the high-water line. None of the justices seemed concerned that the statement is clearly dicta, and Justice Scalia mused that it struck him as a simply “correct” statement of most coastal states’ law. The problem for the landowners is that another Florida common-law doctrine, avulsion, can deprive a beachfront property owner of his or her right of contact with the water. Avulsion comes into play when a dramatic event (for instance, a hurricane) changes the coastline, submerging land or uncovering new dry land. After an avulsion—unlike a gradual accretion—the boundary line between private and state land remains fixed. So, if the avulsion uncovers new dry land, someone who owned beachfront property may no longer have contact with the water.

The justices spent their morning trying to figure out two questions: is the state’s beach restoration equivalent to an avulsive event, and if so, does the doctrine apply to artificially created avulsions? The 1927 Martin case, involving a lake drained by the state, is the main precedent, but nobody—not the justices, the attorneys, or Florida Supreme Court justices over the decades—could figure out what it meant. In fact, the Sand Key majority spent several pages explaining the case, only to have the dissent label their analysis a “tragic confusion.” The justices on Wednesday generally agreed that Martin is the best support for the decision below; however, Justice Alito wondered what the Court should “do about the fact that the Florida Supreme Court didn’t rely on it?”—for, inexplicably, that court never cited Martin. Nobody had a good answer.

In short, all this comes down to a very difficult Florida case that even the Florida Supreme Court’s justices have vehemently disagreed on. The Court may yet reach the judicial takings question—Chief Justice Roberts, in particular, kept trying to push the constitutional issue—but it seems possible they will instead decide to leave questions of avulsion and accretion to the Florida Supreme Court for now.

Argument Preview

Stop the Beach Renourishment v. Florida Department of Environmental Protection presents the Court with an opportunity to develop new law on a question that has long attracted attention from scholars and, occasionally, the justices themselves: whether a judicial decision can ever constitute a government taking. Justice Potter Stewart first broached this possibility in 1967 in his concurring opinion in Hughes v. Washington, a case involving a state supreme court decision that had the effect of depriving the petitioner of property. In Justice Stewart’s view, if the state court property decision “arguably conform[ed] to reasonable expectations,” the Supreme Court could not review it. But, he said, if the decision was “a sudden change in state law, unpredictable in terms of the relevant precedents,” a federal takings question was presented.

Nearly three decades later, Justices Scalia and O’Connor picked up the judicial takings theme in a dissent from the denial of certiorari in Stevens v. City of Cannon Beach (1994). Analogizing to state court pretextual rulings that violate Due Process rights, they concluded that a federal takings question would be presented if a state court changed an owner’s property rights by “invoking nonexistent rules of state substantive law.” Since then, the Court has denied some fifteen cert. petitions on the judicial takings issue. That it granted certiorari now suggests that the Court may be ready to develop the theory in Stop the Beach, a challenge to a Florida Supreme Court decision that the petitioners – coastal property owners – claim deprived them of certain common-law property rights. To reach the judicial takings issue, however, the justices will have to immerse themselves in the details of the Florida common-law claim – which, the United States has argued in an amicus brief, was decided correctly below. Thus, the oral argument may well focus on state, rather than constitutional, law.

Some background is necessary in order to understand the parties’ competing claims. In most coastal states, ownership of beachfront property is split between the state and private parties. The dividing line is the mean high water line (MHWL), a dynamic boundary that fluctuates as the beach grows or erodes. Traditionally, the state owns everything seaward of the MHWL. Florida’s common law reflected these principles, but was partially replaced in 1965 and 1970, when the Florida legislature enacted the Beach and Shore Preservation Act. The statute, a response to coastline damage caused by hurricanes, authorized the state to take action to rebuild beaches. The critical point for this case is that the first step in rebuilding a beach is to fix an erosion control line (ECL), which becomes the new, and permanent, boundary between the private owners’ land and the state’s land. Often, the ECL is set at the MHWL, so the private owners’ holdings are initially unchanged; however, as the MHWL varies over time, the landowners’ rights cease to vary with it. Under the common law, owners would have gained land if the sand had “accreted” and the beach had expanded; however, under the statutory scheme, their land stops at the ECL regardless of accretion. The statute provides that private owners retain most common-law “littoral” (beachfront) rights, including the right of access to the water.

Stop the Beach Renourishment, Inc. includes owners of 5 of the 448 parcels affected by a renourishment project. The owners have two primary objections to the statute. First, they complain about losing the right to gain land by accretion. Second, they argue that under Florida common law, the only landowners who can possess littoral rights are those with a “right of contact” – that is, those whose property actually touches the MHWL. If the boundary of their land is the ECL rather than the MHWL, they would lose all of their common-law littoral rights if the MHWL shifts seaward. Although the statute specifies that those rights are preserved, the landowners argue that a mere statutory guarantee is no substitute for constitutionally protected common-law littoral rights.

The Florida intermediate appellate court agreed with the landowners that the statute constituted a taking under state constitutional law, but the Florida Supreme Court reversed. It rejected the “right of contact” theory, holding that under Florida common law, contact rights are only a species of water access rights, which the statute fully preserves. Moreover, the “right of accretion” is simply a convenient mechanism for allocating land near a dynamic boundary, not an independent right. Because none of the policy rationales underlying the “right of accretion” were present, and because of the importance of protecting beaches, no constitutional problems existed. Two justices filed dissenting opinions, in which they accused the majority of twisting clear common law solely to protect a favored environmental program.

In the Supreme Court, the briefing on the judicial takings theory itself has been limited. Petitioner and its amici cite early substantive due process cases and Hughes, but there is little other relevant caselaw. The respondents – the Florida Department of Environmental Protection, the Board of Trustees of the Internal Improvement Trust Fund, Walton County, and the City of Destin – and their amici, which include both Florida and the United States, do not argue that judicial decisions can never effect takings. But, citing Justice Stewart’s standard, they contend that there was no taking in this case because the Florida Supreme Court’s decision was not a departure from prior law. Both parties end up deep in the weeds of Florida common law, arguing over accretion and the related doctrine of avulsion. The respondents also argue that petitioner’s standard federal takings argument and procedural due process claim have been waived.

Should the court find that a judicial taking occurred, several issues will need to be addressed. First, there’s the standard of review. Second, there’s the issue of remedy: a taking is only unconstitutional if there is no compensation, but courts have no funds for compensation. Finally, there’s the issue of which courts can actually review judicial takings claim. The Rooker-Feldman doctrine suggests that lower federal courts cannot. Thus, the justices may create a claim in this case that only they can adjudicate.

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