Below, Elisabeth Oppenheimer of Stanford Law School previews Stop the Beach Renourishment v. Florida Department of Environmental Protection (08-1151), which will be heard by the Supreme Court on Wednesday, December 2.  Check the Stop the Beach Renourishment SCOTUSwiki page for additional updates.

On Wednesday, December 2, the Court will hear oral argument in No. 08-1151, Stop the Beach Renourishment v. Florida Department of Environmental Protection.  The case 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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