Florida's beach restoration program weathers a storm in the courts: stop the Beach Renourishment v. Florida Department of Environmental Protection.

• Author: Oldehoff, Gary K.
• Position: Cover story

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If you have been to the beach in Florida, chances are it was restored by the government at some point in the past. This beach restoration has been performed pursuant to the Florida Beach and Shore Preservation Act. (1) At least 205 of the state's 825 miles of sandy beaches have been restored. (2) A critical feature of the act is the establishment of a fixed erosion control line (ECL) at the shore before the restoration is commenced. (3) Once set, the line becomes the permanent property line between private property and state property. (4) An ECL is determined according to the criteria set forth by the act (5) and reflects the mean high water line on the date of the survey.

Typically, the property boundary line at the shore (the "littoral" boundary line at the shore of the Atlantic Ocean or the Gulf of Mexico, and the "riparian" boundary line at the shore of any inland bodies of water) is not fixed. Despite the extraordinary significance that beaches have to the geography of Florida, its history of growth, and the health and vitality of its economy, there has apparently not been much appellate litigation over disputes at the shore between upland land owners and the state, or others using the beaches. Consequently, there is not much case law precedent in Florida on the dynamics of property rights and interests in the shore. Nevertheless, the key features of the law have been identified, though they perhaps have not been fully explored and their terms delineated. The Florida Constitution provides that the title to lands under navigable waters --including beaches below mean high water lines--is held by the state, by virtue of its sovereignty, in trust for all the people. Private use of portions of such lands may be authorized by law, but only when not contrary to the public interest. This is consistent with the common law existing since the time of Justinian under the name of the public trust doctrine. (6)

Under the public trust doctrine, the state holds in trust all lands on the Atlantic and Gulf coasts below mean high water for the use and enjoyment of the residents and visitors of the state and has been tasked by voters and the legislature to preserve and protect these beaches and lands as important natural resources. (7) Private upland owners of land at the shore own to the mean high water line. (8) Though the public's right or ability to use the sand beach area of the shore above the daily high water line (the area between the high tide line and the dune line or point where vegetation begins) is not entirely clear, the public and the upland property owner both possess the right to use and enjoy the area from the mean high water line out to the sea. This area of common rights and interests is typically referred to as the wet sand beach.

Most people going to the beach would probably be surprised to learn that the "mean high water line" identifying the boundary between public and private property is not the line where the tides have placed the shells or seaweed, but is a line drawn on the basis of the preceding 19 years of tides. (9) The mean high water demarcation line on a visit to the beach may actually be very different than the water line, the debris line, or even the dune line on a particular day. This 19-year line is nevertheless critical to the line of demarcation between private upland and public land when property rights are concerned.

The state holds all land waterward of the mean high water line in trust for the use and enjoyment of the people. If the shore erodes, the property line moves landward, and the upland property owner loses land. Conversely, if accretion occurs at the shore, the property line moves waterward, and the upland property owner gains land. However, when an ECL is established and a beach is restored, the new dry land does not belong to the upland property owner.

These legal features of littoral property were central to Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, 560 U.S.--, 130 S. Ct. 2592, 177 L. Ed. 2d 184 (2010), for, if the restored beach belongs to the state, it can be used by the people, and upland property owners cannot prevent people from occupying this area, nor can they insist the public stay only at the water's edge. Upland owners will perceive that their private beach has been replaced by a public beach. Additionally, if the upland property owner believes there is a chance the beach will somehow restore itself naturally by accretion, and is willing to take that chance, the owner loses the opportunity to add that land to his or her property and shoo the public from it.

The Storm in the Courts

The plaintiffs in Stop the Beach Renourishment (STBR) are a group of six property owners along a 6.9-mile stretch of beach in Destin, Walton County, where a beach restoration project was being undertaken. The beach had been significantly damaged by several hurricanes and storms, including hurricanes Opal, Georges, and Ivan. (10) Plaintiffs administratively challenged the issuance of the permit, as well as the constitutionality of the act in light of its provisions for fixing the littoral property line. (11) Specifically, STBR claimed these provisions were unconstitutional because they took their property rights to future accretion and the ability to have permanent contact with the water without providing for just compensation. The administrative law judge considered the act constitutional. (12)

STBR appealed to the First District Court of Appeal, which in an opinion by Judge (now Justice) Polston, reversed the administrative law judge's decision, and held that the act's provisions for the E CL deprived plaintiffs of their property rights to future accretions and contact with the water without providing for just compensation. (13) In support of its decision, the court referenced language in Board of Trustees of the Internal Improvement Trust Fund v. Sand Key Associates, Ltd., 512 So. 2d 934, 936 (Fla. 1987), that littoral rights include vested rights "to have the property's contact with the water remain intact," and "to receive accretions and relictions," and in Belvedere Development Corporation v. Department of Transportation, 476 So. 2d 469 (Fla. 1985), that the riparian right to access cannot be severed from an upland property without compensation. (14) The court nevertheless certified the question as one of great public importance. (15)

The Florida Supreme Court accepted the case on the basis of both mandatory and discretionary jurisdiction. (16) On September 29, 2008, the Florida Supreme Court reversed the First District Court of Appeal, and held that the act's provisions on property rights and interests do not, on their face, effect an unconstitutional taking of the upland owner's property. The court carefully reviewed Florida's common law on the public and private property rights and interests at the shore, juxtaposed the act with that common law, and concluded that the act, on its face, does not unconstitutionally deprive upland owners of littoral property without just compensation.

Examining the common law, the court observed that striking a fair balance between competing public and private rights and interests has factored significantly in the formulation of the legal principles that inform the issues presented in this case. It explained that under the public trust doctrine, the state holds the lands seaward of the mean high water line, including the beaches between the mean high and low water lines, in trust for the public for the purposes of bathing, fishing, and navigation. In addition, the state has an obligation to conserve and protect Florida's beaches as important natural resources, presumably under the police power, but also specifically by virtue of an act of the legislature--F.S.[section] 161.088. (17)

The court also explained that private upland owners also hold bathing, fishing, and navigation rights at the shore in common with the public. The common law also recognizes that upland owners possess four special or exclusive rights: 1) the right to have access to the water; 2) the right to reasonably use the water; 3) the right to accretion and reliction; and 4) the right to the unobstructed view of the water. (18) These rights have two important limitations and one significant intrinsic value: 1) They are only "such as are necessary for the use and enjoyment" of the upland property; 2) they "may not be so exercised as to injure others in their lawful rights"; and 3) they are property rights that are protected by the constitution, and, therefore, cannot be taken from upland owners without just compensation. The court decided that under Florida common law, there is no independent right of contact with the water. Instead, contact is ancillary...