Wednesday, December 2, 2009

Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection

Today, the US Supreme Court heard oral arguments in a very interesting and complex property dispute, in which a group of beach front private property owners claim that the Supreme Court of Florida took, without just compensation, property rights that they previously held by changing Florida common law relating to littoral property rights. Florida's Beach and Shore Preservation Act (here) sought to deal with the problem of beach erosion stemming, for example, from hurricanes by "renourishing" (adding sand) beaches below the mean high water mark. At first, the petitioners argued that the legislation itself took their property rights by adding a publicly owned sand beach between their property boundaries and the water. But they changed their claim to one of "judicial taking" after the Florida Supreme Court ruled (here) that they did not have a right to have their lands touch the water in the first place. The State of Florida denies that the Florida Supreme Court's decision changed the common law of the state in any significant way.

As a matter of general common law (I do not pretend to know the precise rules of Florida common law), beach front property owners own the beach up to the mean high water mark. Beyond that point, the State owns the beach (which is at least sometimes submerged) under the constitutional Equal Footing Doctrine. In addition to their fee simple rights in the beach front lands, the landowners possess littoral property rights, which include the right of access to the water across state-owned lands (that are occasionally dry) below the mean high water mark. In this case, the petitioners also claim, but the state denies, that littoral property rights include the right to have their land actually touch the water (at least when the water is at the high water mark).

In this case, beach erosion resulting allegedly from the avulsive effects of hurricanes had led the Florida  legislature to assist beach front landowners, primarily, by protecting their properties from flooding due to further beach erosion by adding more sand below the mean high water mark, i.e., on formerly submerged lands owned by the state. This created a 70-foot strip of continuous dry beach to which the State and the petitioners both claim ownership pursuant to their conflicting understandings of common-law littoral property rights in the State of Florida.

There are several interesting aspects of this case and the oral arguments (here): (1) like many other significant Supreme Court decisions under the Takings Clause, the case arises where property systems collide, e.g., where privately owned lands meet publicly owned waters; (2) this case, unlike many others, forces the Court to straightforwardly consider the public property rights at issue, as well as the private property rights; (3) the US Supreme Court has never before found a compensable taking of private property stemming from a judicial change in common-law property rules; (4) the justices' questioning about the varying impacts of avulsion and accretion; and (5) the indication of some justices that, even if this constituted a taking, the petitioners might have received reciprocal benefits from the beach nourishment projects equal to or greater than the value of the taking.

Hat tip to Jurist.com.

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