Supreme Court Holds that the Public Trust Rules --- No Takings Here

Surfrider Foundation and our pro bono counsel from McDermott Will & Emery celebrate a substantial victory from the recent decision of the United States Supreme Court, in Stop the Beach Renourishment v. Florida Department of Environmental Protection, upholding the constitutionality of the Florida state's beach management program and solidifying public beach access rights. The court unanimously supported the respondent, Florida DEP, and affirmed the lower court ruling of "no takings" of private property without just compensation in this instance. The court ruled 8-0, with the abstention of Justice Steven (who reportedly owns property on the Florida coast), to uphold the Florida Supreme Court's decision. Surfrider Foundation issued an amicus brief in support of public trust beach access rights in this case and to ensure against a ruling in favor of the private property owners. Surfrider recognized that had the ruling been in favor of the private homeowners, the concept of the public beach could have slowly vanished along with the eroding beaches around the country.



The Supreme Court held that Florida Beach and Shore Preservation Act does not deprive the petitioners of the littoral property rights without just compensation, and that petitioners did not suffer a "takings" through the state government's erosion response actions. The court held that Florida state law provides that an avulsive event, or sudden addition of sand, accrues to the state and public trust resources. Justice Antonin Scalia, known for his strict interpretation of U.S. Constitution and state law, writes for the Court:

"In Florida, the State owns in trust for the public the land permanently submerged beneath navigable waters and the foreshore (the land between the low-tide line and the mean high-water line)."

Therefore, anytime there is an avulsive event in Florida (including a beach renourishment project), the homeowner's private right of accretion does not attach. The Florida Supreme Court was affirmed in its decision to treat the right of accretions as "future contingent interest, not a vested property right" that could invoke the Takings Clause of the Fifth Amendments of the U.S. Constitution. The High Court opinion explains that a beachfront landowner would normally benefit by the slow process of accretion through the extension of the property boundary for all land that has accreted (and would, vice versa, lose land for erosion). However, in this case the publicly-funded beach nourishment project will not be considered an extension of private land, but the new sand will be available to the public, as it is considered part of the public trust. Additionally, the right of contact, as a littoral right for the beachfront property owners, does not attach in any exclusive manner for the residents.

Specifically, the "Judicial Takings" doctrine was the subject of debate among the Justices. Even though the majority held that there is no takings in this Florida case under the rules of the Florida Beach Management Program, four Justices stated that there can still be an instance where the "judicial takings" doctrine may apply in the future. The concurring Justices Kennedy and Sotomayor, opined that the Due Process Clause of the Constitution will likely foreclose any opportunity for a court to make the error of judicial takings and will alleviate the need to utilize the doctrine in any judicial decision-making. They also warn that the judicial takings doctrine could be abused and end up giving courts more discretion, rather than constraining the power of the judicial branch.

Although the issue in this case was specifically surrounding the Beach Management Program of the Florida Department of Environmental Protection, Surfrider anticipates that this case will be instructive for future courts and some lawmakers in deciding how to regard the public trust resources of our coastlines. The case serves as affirmation to the state's ability to protect their own natural resources and coastlines. As our shorelines are expected to change more rapidly with increased storms, hurricanes and sea level rise, this case will likely have increasing significance in the coming years.


Notes:
"Avulsive Event" - "sudden or perceptible loss of or addition to land by the action of the water or a sudden change in the bed of a lake or the course of a stream" as cited in the Sand Key case

More definitions available from the previous post here.

Surfrider Foundation press release located here.

Photo courtesy of Cliff1066

The Case of the Problematic Hot Dog Stand

Yesterday's hour-long U.S. Supreme Court hearing on the Florida Department of Environmental Protection v. Stop the Beach Renourishment beach access case afforded a lively debate, including hypothetical scenarios of hot dog stands and spring breakers and enlightening discussion of case law. The case centered around the private oceanfront property owners right to exclude the public from the sandy beach in front of their houses after the state had filled that beach with taxpayer-bought sand.

Justice Sotomayor poignantly highlighted the shaky arguments of the private homeowners, including the tenuous fears of unwanted hot dog vendor who may perturb the sanctity of the sandy beach. Sotomayor pointed out that the hot dog vendor could still sell hot dogs on the beach up to the mean high tide line (or "standing in a foot of water") regardless of the property owners rights based on the public's rights under the Public Trust Doctrine. Her point in bringing up the hot dog vendor in the water was to show that the only right that the property owners are complaining about, with respect to unwanted vendors, is the right to incrementally move the hot dog vendor away from their homes in the case that the beach is accreting. Both Justices Breyer and Sotomayor seemed more sympathetic to the state’s beach renourishment program and its public access goals. Justices Roberts and Alito seemed to side with the private homeowner’s fears of noisy hot dog stands.

Somewhat surprisingly, Justice Scalia, a known supporter for invoking the takings clause, seemed somewhat neutral and inquisitive of the homeowners' motivations. Scalia thought the state's action could be a “good deal” for the private property owners given the erosion control value of the new sand. However, Justice Roberts turned this argument around to say that the value of erosion control could be factored in as a deduction from the "just compensation" given in return for a state purchase of the property.

Additionally, the Justices seemed interested in examining the uncharted concept of a "judicial taking," which would be when an act of the judiciary constitutes an unconstitutional taking of property. The Justices posed the hypothetical of an elected judge who campaigned on the plan of overturning a takings law. If the judge won, and ruled in favor of a "takings" it would presumably be a judicial takings versus a "legislative takings" which is done through an enacted law.

As for the rights of accretions and contact, most of the Justices were not clear on how they interpreted Florida case law, except Scalia who stated that the Sand Key decision was a good application of common law that the right of contact with the mean high water line is inherent in the right of access. Other than Scalia, none of the Justices seemed to reveal whether they felt that the rights of accretion and contact were either taken or existed in the first place.

From the line of questioning presented by the Supreme Court Justices yesterday, most attorneys and scholars have speculated that the decision will likely result in a 4-4 split among the Justices. A tie would automatically affirm the lower court’s decision, meaning the property owners would lose.

Prior to oral arguments, Surfrider Foundation submitted a brief of amicus curiae to the Supreme Court, which sought to persuade the Highest Court that Florida’s beach management program does not take littoral rights from property owners because accretion and contact are not absolute littoral rights and as a result the beach regulations were not unconstitutionally applied nor was the Florida Supreme Court’s decision a “Judicial Takings.”

The final written decision will likely be released before the end of the term in June.

Transcripts from the oral argument are available online.

Some important vocabulary if you are reading the caselaw or hearing transcript:
Avulsion – an abrupt change in the course or channel of a water boundary with land, resulting in the loss or addition of land. The sudden and perceptible nature of this change distinguishes avulsion from accretion.
Accretion – the adding on or adhering of something to property, usually gradual and imperceptible addition of sediment to shore by action of the water
Littoral rights – refers to “rights concerning properties abutting the ocean, sea or lake rather than a river or stream (riparian). Littoral rights are usually concerned with the use and enjoyment of the shore.
Reliction – the gradual and imperceptible withdrawal of water from land by lowering of the surface water level

This Week at the Supreme Court: Beach Access

The Supreme Court will hear a very important beach access case this Wednesday, December 2nd. At issue is the right of the public to access and use the sandy beach in front of private property owner’s beachfront houses after the sandy beach has been replenished by the state’s beach management program. (That is, taxpayer-bought sand is poured on the beach in order to widen the beach and counteract erosion.)Before the United States Supreme Court granted cert, the Florida Supreme Court heard the matter, and decided 5-2 decided that Florida’s beach management program was valid and that the state has "a constitutional duty to protect beaches."

Not only has Surfrider Foundation filed an amicus or "friend of the court" brief in this case (see previous blog), but Surfrider has also been researching and documenting various beach access regulations in our State of the Beach Report by Rick Wilson. For more information, see today’s news articles.