Constitutional problems with judicial takings doctrine and the Supreme Court's decision in Stop the Beach Renourishment.

• Author: Wydra, Elizabeth B.

1. INTRODUCTION II. CONSTITUTIONAL PROBLEM NUMBER 1: CONSTITUTIONAL HISTORY DOES NOT SUPPORT A JUDICIAL TAKINGS THEORY III. CONSTITUTIONAL PROBLEM NUMBER 2: A JUDICIAL TAKINGS THEORY WOULD VIOLATE PRINCIPLES OF FEDERALISM AND COMMON LAW IV. CONSTITUTIONAL PROBLEM NUMBER 3: THE TEXT OF THE CONSTITUTION ALREADY PROVIDES PROTECTION THROUGH THE DUE PROCESS CLAUSE, RENDERING A JUDICIAL TAKINGS THEORY SUPERFLUOUS V. CONCLUSION I.

   INTRODUCTION

   The Supreme Court's 2009 term featured a slate of blockbuster cases: for example, the second, special-session re-argument of Citizens United v. FEC, (1) review of the criminal conviction of former Enron CEO Ken Skilling in Skilling v. United States, (2) and the question in McDonald v. City of Chicago (3) of whether an individual right to have a gun for self-defense is constitutionally protected against state infringement. Another potential blockbuster was the first "takings" case to be heard since Chief Justice John

   Roberts and Justices Samuel Alito and Sonia Sotomayor joined the Court: Stop the Beach Renourishment v. Florida Department of Environmental Protection. (4) Closely watched by property-rights activists, environmental advocates, and state and local governments, (5) Stop the Beach presented the Court with the opportunity to recognize for the first time a doctrine of "judicial0 takings," (6) which would have the potential to significantly limit state courts' ability to reform state property law and, in this case, to seriously hinder state and local efforts to protect coastal areas and respond to environmental disasters.

   Stop the Beach Renourishment involved a beach restoration project on Florida's Gulf Coast. (7) Due to sea level rise and increased hurricane activity, beaches around the country are eroding rapidly, and a number of states have invested heavily in programs to maintain their beaches. In particular, Florida's shorelines have been repeatedly damaged by hurricanes and erosion. (8) The Beach and Shore Preservation Act of 1965 (9) was enacted to protect Florida's citizens and environment, in light of the legislature's view that "beach erosion is a serious menace to the economy and general welfare of the people of this state and has advanced to emergency proportions." (10) The Act provides for beach restoration and nourishment projects to shore up beaches threatened by erosion along the state's 825 miles of sandy beaches. (11) In other words, when local governments like Florida's City of Destin and Walton County apply for the necessary permits under the Act, the state will dredge sand from one area and dump it on another, expanding the width of the threatened beach.

   In most coastal states like Florida where ownership of beachfront property is split between the state and private parties, the traditional rule of beachfront property ownership, stated simply, is that private landowners own the "dry" land and the state owns the seabed. (12) "The dividing line is the mean high water line (MHWL), a dynamic boundary that fluctuates as the beach grows or erodes." (13) "Traditionally, the state owns everything seaward of the MHWL." (14) Florida law, like most states, differentiates between gradual and sudden changes in the coastline. (15) Gradual additions to the shoreline are "accretions;" gradual subtractions are erosion. (16) Under the common law, a beachfront property owner bears both the benefit and burden of these changes: accretion increases the property owners' land, but erosion will reduce it. (17) Sudden, perceptible changes in the shoreline--as opposed to gradual accretion or erosion--are called "avulsions." (18) While a sudden change to the shoreline would obviously change the MHWL, under the common law of avulsion in Florida, the legal boundary remained the pre-avulsion MHWL. (19)

   The Beach and Shore Preservation Act shifts the line between public and private property, modifying the common law of beachfront property ownership. (20) Under the Act, 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. (21) The state then adds sand to shore up the beach, creating an artificial avulsion. (22) In many instances, "the ECL is set at the MHWL, so the private owners' holdings are initially unchanged; however, as the MHWL varies over time," the line of property ownership "ceases to vary with it." (23) Thus, "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 any accretion." (24) In addition, because of the fixed ECL under the Act, the land added by the state nourishment project, an artificial avulsion, is not added to the private property owner's land but instead becomes public property. (25) The statute does, however, "provide that private owners retain most common-law "littoral" (beachfront) rights, including the right of access to the water." (26)

   The project at issue in Stop the Beach would add about seventy-five feet of dry sand to the beach. This added area would become public beach (whereas if sand had accumulated naturally it would have expanded the private landowners' property). Accordingly, beachfront property owners in the area would no longer own property to the water's edge. Six beachfront property owners in Walton County, banding together as "Stop the Beach Renourishment, Inc.," challenged the beach renourishment project undertaken pursuant to the Act. (27) Florida's district court of appeal agreed with them, concluding that the project would infringe two of the property owners' "common law riparian rights": specifically the right to receive accretions on their land, and the right to have their property actually contact the water. (28)

   The Florida Supreme Court, however, disagreed and found that the Beach and Shore Preservation Act does not unconstitutionally deprive the beachfront property owners of any property rights without just compensation. (29) As a matter of state law, the Florida Supreme Court held that the doctrine of avulsion--which means a sudden, perceptible loss or addition to land by water--permits the State to reclaim the restored beach on behalf of the public. (30) It did not matter that the "avulsion" in this case--that is, the addition of sand to the eroded beach--was in fact created by the state, because the state owns the seabed and has the right to fill in portions of it and claim the resulting dry beach seaward of the ECL. (31)

   The property owners sought review from the U.S. Supreme Court on the ground that the Florida Supreme Court's decision itself affected a taking of their property rights by allegedly redefining these rights in a sudden, unpredictable way that was inconsistent with Florida law. (32) In other words, the petitioners asked the Supreme Court to recognize,, for the first time, that a claim could be brought under the Takings Clause for a judicial taking. The Constitution's Fifth Amendment "takings clause" requires governments to pay "just compensation" when they take private property for public use. (33) This requirement has been applied to acts of the legislative and executive branches, but the Court has never held that a court decision itself can amount to a taking of property. (34)

   Somewhat surprisingly, when the Supreme Court heard oral argument, there was very little discussion about the precise contours of a judicial takings claim or the potential consequences of recognizing that such a claim even exists. (35) Instead, the Justices expressed chagrin over the potential for hot dog stands on public beaches in front of homes and the specter of hordes of rowdy spring breakers taking over wide stretches of state-created beaches. (36) However, at the same time, most of the Justices did not seem to think that the Florida Supreme Court's ruling on the Beach Preservation Act's effects on the scope of petitioners' property rights was so unreasonable as to constitute a judicial taking. The lawyer for the property owners conceded there wasn't much case law supporting their view of Florida beachfront property rights, and, since the property owners had to show that the Florida court's decision broke with existing state law in a sudden, unpredictable way, Justice Scalia noted, "[i]f there's no case law, it seems to me you've lost your case." (37) Justice Kennedy suggested, assuming that it was a "close case" and the Florida Supreme Court could have gone either way, the mere concession that it is a close case could undermine the property owners' claim that the Florida court's decision lacked a fair and substantial basis. (38) Or, as Justice Breyer observed, it appeared that the Florida Supreme Court was simply facing "a typical common law situation," (39) in which a state court applies precedent and common law principles to new facts; normal, incremental development in a state's property law surely cannot represent a constitutional violation each time a state court acts in common law capacity.

   Thus, it was not terribly surprising to most observers when, writing for the Court, Justice Scalia ultimately concluded that the Florida Supreme Court did not violate the takings clause, after a somewhat dry discussion of water and property rights under Florida law and common law. (40) The big question, however, was whether such a judicial takings claim could ever exist. Here, Justice Scalia opined that the takings clause "applies as fully to the taking of a landowner's riparian rights as it does to the taking of an estate in land," (41) arguing that "[i]t would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat." (42) However, Scalia was not speaking for a majority of the Court, only a plurality of four justices: Chief Justice Roberts, and Justices Alito, Thomas, and himself (only eight Justices...