A Day at the Beach: Supreme Court Plurality Recognizes Concept of Judicial Taking; Court Unanimously Concludes No Taking OccurredBy Linda Larson
A plurality of the United States Supreme Court, purporting to redefine the application of the Takings Clause of the Fifth Amendment to the United States Constitution, recently concluded that a decision by a state court of last resort may constitute a “taking” of private property without just compensation. The Court unanimously held that the Florida Supreme Court, by upholding the State’s decision to restore an eroded beach by filling in submerged land owned by the State, did not engage in an unconstitutional taking of beachfront property owners’ property rights. However, Justice Scalia, joined by Justices Thomas and Alito and Chief Justice Roberts, went further and declared that future state court judicial decisions—as opposed to actions by state executive or legislative entities—could be prohibited takings if “a court declares that what was once an established right of private property no longer exists.” The remainder of the Justices concurred in the judgment, but filed opinions either criticizing the plurality for expressing “views” not called for by the facts of the case, or disagreeing with the notion of a judicial taking, or both.
The State of Florida owns the land permanently submerged beneath navigable waters in trust for the public. The mean high-water line is the boundary between private beachfront, or littoral property, and state-owned land. Among the property rights of beachfront owners under Florida law are rights to have access to the water, to use the water for certain purposes, to have an unobstructed view of the water, and to receive automatic title to gradual accretions to their property. However, when sudden events or avulsions add land, the boundary between private and public land remains the high-water line, and any future accretions on the water side of that line belong to the state, not the beachfront owner.
Florida’s Beach and Shore Preservation Act of 1961 establishes procedures that allow government entities to deposit sand on eroded beaches (beach restoration) and then maintain the deposited sand (beach nourishment). A local government may apply to the Florida Department of Environmental Protection (“FDEP”) for the funds and permits to restore a beach. When the project involves placing fill on state land, the Board of Trustees of the Internal Improvement Trust Fund, which holds title to the seabed, sets a fixed “erosion control line” to replace the fluctuating mean high-water line as the boundary between private and state property. Once the new line is recorded, the common law ceases to apply: when accretion moves the mean high-water line seaward, the boundary of private littoral property remains at the permanent erosion-control line and does not move with the new mean high-water line.
In 2003 the city of Destin and Walton County sought permits to restore 6.9 miles of beach eroded by several hurricanes, adding about 75 feet of dry sand seaward of the mean high-water line (to be denominated the erosion-control line). The owners of beachfront property bordering the project formed a nonprofit corporation and brought an administrative challenge, but were unsuccessful. FDEP approved the permits. The owners then challenged the issuance of the permits under the state’s Administrative Procedure Act.
The Florida State Court of Appeal concluded that FDEP had eliminated the beachfront owners’ rights to (1) to receive accretions to their property and (2) to have their property’s contact with the water remain intact. Concluding that this would be an unconstitutional taking, it set aside the order, remanded the proceeding, and certified to the Florida Supreme Court the question: “On its face, does the Beach and Shore Preservation Act unconstitutionally deprive upland owners of littoral rights without just compensation?” . The Florida Supreme Court answered “no” and quashed the remand, concluding that the private owners did not own the property they claimed had been taken. The Florida court “described the right to accretions as a future contingent interest, not a vested property right, and held that there is no littoral right to contact with the water independent of the littoral right of access, which the Act does not infringe.”
The beachfront owners sought rehearing on the ground that the Florida Supreme Court’s decision itself resulted in a taking of their littoral rights contrary to the Fifth and Fourteenth Amendments to the Federal Constitution. The request for rehearing was denied. The Supreme Court granted certiorari.
The Plurality’s Decision
After summarizing the facts and Florida law as to accretions in Part I, the plurality attempted to expand the reach of the Takings Clause in Part II. Justice Scalia began his analysis with a review of “some general principles of our takings jurisprudence,” noting that the “Takings Clause—’nor shall private property be taken for public use, without just compensation,’ U.S. Const[itution]., Am[endment] 5—applies as fully to the taking of a landowner’s riparian rights as it does to the taking of an estate in land.” Such takings can include state regulations which deprive an owner of all economically beneficial use of his or her property, as well state actions that “recharacterize as public property what was previously private property.”
Next, Justice Scalia cited his dissent from a denial of certiorari in Stevens v. Cannon Beach as support for the following proposition:
The Takings Clause (unlike, for instance, the Ex Post Facto Clauses, see Art. I, § 9, cl. 3; § 10, cl. 1) is not addressed to the action of a specific branch or branches. It is concerned simply with the act, and not with the governmental actor (“nor shall private property be taken” (emphasis added)). There is no textual justification for saying that the existence or the scope of a State’s power to expropriate private property without just compensation varies according to the branch of government effecting the expropriation. Nor does common sense recommend such a principle. It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat.
Reasoning that “[o]ur precedents provide no support for the proposition that takings effected by the judicial branch are entitled to special treatment, and in fact suggest the opposite”, the plurality concluded, “[i]n sum, the Takings Clause bars the State from taking private property without paying for it, no matter which branch is the instrument of the taking.”
Part II of the plurality decision consists of several pages devoted to rebutting the arguments of the other five justices who refused to join in the idea of a judicial taking. Part III of the decision consists of five paragraphs dismissing the arguments of the city and county respondents “which contradict, to a greater or lesser degree, the principle discussed above, that the existence of a taking does not depend upon the branch of government that effects it.”
Finally, in Parts IV and V, the plurality examined whether or not the beach owners had in fact lost any property rights to which they were entitled under state law, and concluded that they had not because the Florida Supreme Court’s decision was consistent with established principles of state property law: “The Takings Clause only protects property rights as they are established under state law, not as they might have been established or ought to have been established. We cannot say that the Florida Supreme Court’s decision eliminated a right of accretion established under Florida law.”
The Views of the Concurring Justices
Justices Kennedy and Sotomayor concurred in Parts I, IV and V of the plurality opinion analyzing the state law principles of land ownership and concurred in the judgment, but were not willing to follow the plurality down the road to a consideration of judicial taking. “As Justice Breyer observes, however, this 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 of the Fifth Amendment of the United States Constitution.” The two justices questioned whether the plurality itself had created new problems by going in search of a resolution of a problem not properly presented by the case, observing that it is “not wise, from an institutional standpoint, to reach out and decide questions that have not been discussed at much length by courts and commentators.”
Justices Breyer and Ginsberg also agreed that no taking of property occurred in the case, concurring in Parts I, IV and V and in the judgment. Justice Breyer, who was roundly criticized by Justice Scalia in the plurality opinion for his caution, feared that the plurality had created a monster:
Property owners litigate many thousands of cases involving state property law in state courts each year. Each state-court property decision may further affect numerous nonparty property owners as well. Losing parties in many state-court cases may well believe that erroneous judicial decisions have deprived them of property rights they previously held and may consequently bring federal takings claims. And a glance at Part IV makes clear that such cases can involve state property law issues of considerable complexity. Hence, the approach the plurality would take today threatens to open the federal court doors to constitutional review of many, perhaps large numbers of, state-law cases in an area of law familiar to state, but not federal, judges. And the failure of that approach to set forth procedural limitations or canons of deference would create the distinct possibility that federal judges would play a major role in the shaping of a matter of significant state interest—state property law.
But Does It Mean Anything?
The actual holding of the case — that the Florida Supreme Court had not taken away a property right from the beachfront owners as a matter of state law—is not of national import. The plurality’s reasoning in favor of the creation of doctrine of judicial takings is dicta. The real question is whether, having sent a message out to property owners that at least four justices are willing to do so, some future majority of the Court will expand the application of the Takings Clause of the Fifth Amendment when a case with appropriate facts presents itself. In the meantime, the lower federal and state courts will be wrestling with the issue as aggrieved property owners seek to become just that case.
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