Litigation Preview

Author:Jessica B. Goldstein
Position:J.D. Candidate, May 2012, at American University Washington College of Law
litigation preview
In June 2009, the Supreme Court granted certiorari to Stop
the Be ach Renourishment v. Florida Department of Envi-
ronmental Protection,1 a case concerning the rights of states
to maintain and restore coastal ar eas. The case has created a
great deal of interest, with a majority of U.S. state attorneys gen-
eral, as well as a number of public interest groups, filing amicus
briefs in support of Florida and multiple private property rights
groups filing in suppor t of the land owners.2 The case w ill be
heard in December and the Supreme Court may use it to answer
the question of whether a judicial decision can create a constitu-
tional taking.
Judicial taking occurs when
a stat ute is challe nged for “ta k-
ing” pr ivate proper ty and the
court rules that the property right
in dispute never existed.3 In this
case, the qu estion is w hether
the F lorida Supreme Court was
correct in ruling th at landown -
ers did not have rights over
increased future beach property
resulti ng from natural depo si-
tion and, therefore, a Florida law
did not violate the Constitutional
regulatory takings clause.4 The
U.S. Supreme Court has previously
declined to intervene i n similar cases because they are deeply
rooted in state property law.5
Although the challenge that led to the present case was filed
in 2004 by landowners in Flori da attempting to stop a planned
beachfront restorati on,6 the Florida Beach and Shore Preserva-
tion Act was en acted in 1 961 by th e Florida Legislature. The
purpose of the Act is to address beach erosion, which the leg-
islature found to be a problem affecting the local economy and
general welfare of society.7 The state has a duty under the State
Constitution to protect and conserve Florida’s b eaches as they
are important natural resources and held in trust for public use.8
The Act charged the Florida Department of Environmental Pro-
tection with the determination of whic h beaches are in need of
restoration and authorized spending for up to seventy-five per-
cent of the actual costs of restoration.9
Under t he Florida B each and Sho re Preservation Act, the
Board of Trustees of the Interna l Imp rovement Trust Fund
establishes a fixed erosion control line (“ECL”) to replace the
mean high water line (“MHWL”), which fluctuates with the rise
by Jessica B. Goldstein*
and fall of the water level.10 In establishing the ECL, the Board
considers the MHWL, the extent of erosion, and landown ers’
rights.11 A s a result, the ECL becomes the new fix ed property
line, div iding public lan ds and upland property.12 When cities
and towns restore beaches eroded by hurricanes, the increased
beach a rea below th e ECL become s public beac h because th e
restoration is done using public funds.13 The ECL allows upland
owners to conti nue to exercise l ittoral right s,14 such as boat-
ing, fis hing, and swi mming.15 The A ct states tha t “there is no
intention on the part of the state to extend its claims to lands not
already held by it or to deprive
any upland or submerged land
owner of the legitimate and con-
stitutional use and enjoyment of
his or her property.”16
At issue in Stop the Beach
Renour ishment is the pla n to
“renour ish” beaches criti cally
eroded by a hurricane in 199 5
through th e a ddition of sand,
and the establishment of an ECL
in conjun ction with the pro j-
ect.17 In 2006, a Florida District
Court held that the state’s resto-
ration effort was an unconstitu-
tional property tak ing that denied
property owners their right to water contact and accretion, which
is the increase of shoreline gradually added by a body of water.18
Under Florida ca se law, landowners were allowed to use the
doctrine of accretion to own land.19 However, upon appeal, the
Florida Supreme Court ruled that the Florida Beach and Shore
Preservation Act does not deprive owners of their littoral rights
and reversed the district court’s ruling.20
While the Flo rida Supreme Court acknowledged landown-
ers’ littoral rights, it d rew a distinction between the present
rights of use and access and th e future rights of accretion and
reliction,21 unrel ated to the present use of the s hore and water.
Landown ers claim these littoral rig hts are private property
rights and, therefore, that the state’s action constitutes a taking,
which requires just compensation.22 The Florida Supreme Court
held, however, that the right does not exist unless land is added
*Jessica B. Goldstein is a J.D. Candidate, May 2012, at American University
Washington College of Law.
There is much speculation
over whether the Supreme
Court will address the
issue of judicial takings
and use this case to
establish precedent
74FALL 2009
through accretion or reliction.23 Because the state adds the sand
for restorat ion, landowners do not have a property right t o the
increased beachfront.24 Furt hermore, the court adds that there
is no right of contact with water under Florida common law.25
The Supreme Court of Florida stated the Florida Beach and
Shore Preservation Act carefully balances pri vate property and
public inte rests because it not
only prevents future erosion but
also restor es presently damaged
beaches.26 The court also noted
that, in th e interest of uplan d
owners, t he Act restores thei r
beaches and protects their prop-
erty from future damage and ero-
sion.27 Beach resto ration costs
between three and five m illion
dollars per mile and Florida offi-
cials believe restoring the beach
is enough to co mpensate land-
owners.28 The Surfrider Founda-
tion, a non-profit environmental
organ ization, filed an amicu s
brief arguing that (1) the Florida beach access provisions are
consistent with the Florida Constitution; (2) that private property
owners’ rights are not violated by the Act; and (3) judicial tak-
ings do not apply under the Fifth and Fourteenth Amendments.29
However, the uplan d owners argue that the A ct converts
private waterfront property into merely water view pro perty
without compensation, as required under the Constitution.30 The
Coalition of Property Rights, w hich includ es Florida coastal
property owners,31 claims that the Act lowers property values by
allowing the gen eral public to use the beach.32 They argue that
in order to implement this Act, the government abandoned the
decades-old right of ac cretion, and l andowners claim that this
constitutes an uncompensa ted taking of private property, vio-
lating the Fifth and Fourteenth
Ther e is m uch s pecula-
tion ove r whether the Supreme
Court will address the issue of
judic ial taking s and use this
case to es tablish p receden t,
since it has avoided the issue in
the past. The Florida Supreme
Court reasonab ly determ ined
that accretion rights are future
property rights an d if t he state
did not preserv e t he b eaches,
accretion would not occur due
to the erosion problem. In fact,
landowners could lose more of
their beach than what the Act makes public. The Court should
take into co nsideration the benefit that landowners derive from
the Florida Beach and Shore Preservation Act. Not only is the
state restor ing their beachfront property but als o continuing to
preserve it and, therefore, beachfront property va lues. Is it t oo
great a price to pay that the public has access to that beach? The
Supreme Court will have to decide.
upland owners argue that
the Act converts private
waterfront property
into merely water
view property without
1 Walton County v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102
(Fla. 2008) cert. granted sub nom, Stop the Beach Renourishment, Inc. v. Fla.
Dep’t of Env’l Prot., 129 S.Ct. 2792 (U.S. June 15, 2009) (No. 08-1151).
2 Jennifer Koons, Supreme Court’s Regulatory Takings Case Draws Wide-
spread Interest, n.y. timeS, Oct. 6, 2009, available at http://www.nytimes.
3 Reed Watson, A chance to close the judicial takings loophole 27 perc
reportS, Fall/Winter 2009 at 37, available at
4 Koons, supra note 2.
5 Watson, supra note 3.
6 Koons, supra note 2.
7 Beach and Shore Preservation Act, fla. Stat. §§ 161.011-.45 (2003).
8 Walton County v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102,
1110-11, 1114-15 (Fla. 2008); fla. conSt. art. X, § 11.
9 § 161.101.
10 Id.
11 Id.
12 § 161.191.
13 Koons, supra note 2.
14 “Littoral rights” refer to the property right to the shore between the high and
low tide waterlines.
15 Beach and Shore Preservation Act, fla. Stat. § 161.201 (2003).
16 Id. § 161.141.
17 Save Our Beaches, Inc. v. Fla. Dep’t of Env’l Prot., 31 Fla. L. Weekly
D1173, 1 (Dist. Ct. App. 2006).
18 Id.
19 Walton County, 998 So. 2d at 1111; Brickell v. Trammell, 82 So. 221, 227
(Fla. 1919).
20 Walton County, 998 So. 2d at 1105.
21 “Reliction” (also known as “dereliction”) is the gradual increase of land as a
water body recedes to leave permanently dry land.
22 Watson, supra note 3.
23 Walton County, 998 So. 2d at 1112.
24 Koons, supra note 2.
25 Walton County, 998 So. 2d at 1115.
26 Id.
27 Id.
28 Steve Patterson, Florida’s beach restoration program threatened by suit,
JacKSonville newS, Oct. 8, 2009, available at
29 Surfrider Foundation Argues for Public Access in Brief, envtl protection,
Oct. 13, 2009, available at
foundation-argues-for-public-access-in-brief.aspx (last visited Oct. 17, 2009).
30 Warren Richey, Supreme Court takes up property-rights case, chriStian
Sci. monitor, June 15, 2009, at 2.
31 Koons, supra note 2.
32 Coalition for Property Rights, CPR takes fight to US Supreme Court, Aug.
24, 2009, available at
ter.cfm?ID=827 (last visited Oct. 17, 2009).
33 Id.
Endnotes: litigation preview