Eminent Domain Report

The Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection case received considerable attention both before the Supreme Court agreed to hear it, and following the very colorful oral argument before the Court last December. 

At issue was whether Florida's efforts to restore some of its beaches through depositing 75-feet of sand seaward of the high-tide line rose to the level of a taking due to the restoration work's causing former beach-front owners' property lines to be moved further away from the ocean water.  

What made the case even more interesting was that by the time it got to the US Supreme Court, the issue was framed as whether the Florida Supreme Court's decision in favor of the state constituted a "judicial taking" of property -- a concept first recognized in a 1967 concurring opinion by former Justice Potter Stewart in Hughes v. Washington, in which he explained that a sudden change in state law, unpredictable in terms of the relevant precedents could qualify as a taking.  In the nearly half-century since Justice Stewart posited the concept of a "judicial taking," no court has upheld such a claim. 

Today's opinion is almost as complicated as the archaic law of littoral rights, accretion, and avulsion that underlies it, with four different groupings of Justices signing on to various portions of three different opinions. 

Let's start with the simple part:  the Court held unanimously that the Florida Supreme Court's decision did not constitute a taking.  The Court upheld the ruling in favor of the state, meaning those beach-front property owners whose property is now a bit further away from the ocean are out of luck.

From there, things get a bit murky.  Four Justices signed an opinion authored by Justice Scalia, recognizing the validity of judicial takings claims.  Specifically, the Justices concluded that if a court declares that what was once a recognized private property right no longer exists, such a decision qualifies as a taking. 

However, they believed that the Florida Supreme Court made no such announcement; rather, they concluded that the Florida court based its decision on existing legal principles.  (Note that the other Justices did not reject the idea of a judicial takings claim; they concluded that the Court did not need to reach the issue at all.)

Now, before you call this part of the opinion a big "who cares," in this case, four Justices did not constitute a minority of the panel.  In one of the case's odd twists, Justice Stevens recused himself as a result of his personal ownership of some Florida beach property.  Thus, this part of the opinion represents half the Court.  Still, under long-standing Supreme Court precedent, in the case of a 4-4 tie, the lower court's decision is upheld, and the opinion of the equally divided Court does not constitute binding precedent. 

Still, getting half the voting Justices to endorse the idea of a judicial takings claim is not insignificant, and property-rights advocates are already trumpeting this opinion as a "victory" for property owners.  For example, Timothy Sandefur of the Pacific Legal Foundation writes in a post entitled Judicial takings in Stop The Beach Renourishment:

Today’s decision gives hope to millions of American property owners whose right to their homes, businesses, and other property is often at the mercy of judges who are willing to totally rewrite the law to expand government at their expense.

It remains to be seen whether this decision will open a new floodgate of litigation against judges.  When and if the day finally comes where a court upholds a "judicial takings" claim, one more interesting issue remains:  who pays the judgment?