Thursday, June 17, 2010

The Supreme Court Begins to Take Public Property Seriously

Many of the Supreme Court's most important 5th Amendment Takings decisions of the past several decades have arisen where land meets water (Nollan, Dolan, Lucas, Palazzolo, Sierra-Tahoe, &tc.). In those cases, the Court has focused almost exclusively on private property rights at issue, ignoring existing public property rights in the beds and banks of navigable water bodies. This myopia was most glaring in the Palazzolo case, in which Justice Scalia pronounced the State of Rhode Island a "thief" for taking lands, virtually all of which belonged to it in the first place under well-settled rules of ownership of marshlands subject to tidal flows.

Today, the Supreme Court decided another Takings case where land meets water, and for the first time it paid as much attention to existing public property rights as private property rights. In Stop the Beach Nourishment, Inc. v. Florida Department of Environmental Protection et al. (slip opinion available here),  the Court, in a unanimous opinion authored by Justice Scalia (8-0 because Justice Stevens recused himself, presumably because he owns a beach-front condo in Florida), ruled the State of Florida did not take private property when it replenished sand beaches previously eroded by storms, and claimed ownership of more of the replenished beach pursuant to a fixed "erosion-control line," as opposed to the previous mean-high tide line. The effect of the change in designation of the line of ownership was to increase the amount of beach owned by the public, as opposed to private beach-front landowners.

The Court held that the private owners did not have any claim to the replenished sand beach because, under preexisting Florida law (presumably meeting the "background principles of state law" requirement of Lucas), new lands created by a sudden avulsion (as opposed to a gradual accretion) are owned by the State, and the state law made no distinction when the state caused the avulsion itself. As the unanimous verdict indicates, the taking issue was pretty straightforward and simple in this case. In a real sense, it wasn't even a taking at all because the beach renourishment program had left the landowners with more beach than they had previously. Indeed, from a legal realist perspective, we might understand the Court's decision as slapping the hands of greedy landowners, who wanted the State to basically give them a new beach free of charge. As Justice Scalia expressed it in oral arguments (as quoted by Dahlia Lithwick here at
"Did any of these beachfront owners think this was a good deal, that the state has prevented further erosion of their land and, you know, the price they pay for this is that they have this 60-foot stretch that the public can use, and that may wash away in six years anyway, and if they're lucky the state won't have enough money to put it back?" Scalia concludes that he's "not sure it's a bad deal" for the property owners. It may be better to have the erosion-controlled beach: Without it, "all of your property might be underwater, right? That wouldn't be very good."
In addition for being noteworthy for taking public property rights seriously, the Court's decision in Stop the Beach Nourishment is interesting for the Court's treatment of an issue the Court has never resolved: whether courts, like legislatures and administrative agencies, can be liable to compensate private landowners for takings when they change the rules of property law. The issue arose in this case because the Florida Supreme Court, in ruling that the Florida Beach and Shore Preservation Act did not take private property requiring just compensation, held that the plaintiffs did not in fact own the property alleged to have been taken. For that reason, the case was brought as a so-called "judicial taking." Four Justices - Scalia, Roberts, Alito and Thomas - were willing to accept the doctrine of "judicial takings" in this case, but four others - Kennedy, Sotomayor, Breyer, and Ginsburg - were of the opinion that the Court did not need to reach that issue to decide the outcome of this case, which technically is correct. Thus, the "judicial taking" issue remains unresolved.

Just to correct one flaw in some early commentary on the Court's decision in Stop the Beach Renourishment: it is not true that no federal court has ever found a judicial taking. In Robinson v. Ariyoshi, 753 F2d 1468 (9th Cir. 1985) (see here), the US Court of Appeals for the 9th Circuit ruled that substantial changes in Hawaiian water law made by the Hawaii Supreme Court constituted a compensable taking of the plaintiffs' irrigation water rights. It is true, however, that the US Supreme Court, to date, has not found a judicial taking in any case (although Justice Potter Stewart many years ago averred in a dissent that a court, just as easily as a legislature, be guilty of a compensable taking).

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