Wednesday, December 2, 2009
The Court heard oral arguments today in Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, in which the certified questions include whether a Florida decision on littoral rights constituted a "judicial taking" in violation of the Fifth Amendment's takings clause.
However, as the oral arguments indicated, the “background principles” of Florida law were less than clear. First of all, there is the distinction between an accretion and an avulsion, with the former being gradual and the later being more sudden. Justice Alito seemed less concerned with these distinct labels, saying that they don’t “eliminate the fact that there's been a fundamental change, taking a doctrine that applies to things that occur as a result of nature and you've applied it to things that are produced by the State.” (at 32). For other Justices, the State’s actions of beach renourishment seemed to be beneficial to the property owners, even though these particular property owners were complaining.
Roberts posed this hypothetical, first to counsel for the property owners and then repeating a version of it to counsel for the state of Florida:
(at 33, compare 56). Neither counsel seemed to have a particularly insightful answer to the question, perhaps because Roberts’ hypothetical assumes that the precedents in the state had always been clear.. . . let's say the legislature passes an act saying the boundary of beachfront property is now where the sand starts and not the mean high water mark but the mean high sand mark. All right. And -- and then -- so that's sued. You -- you sue under that and the court says, yes, of course that's a taking, our precedents have always said it's the mean high water line and nothing else. Florida has judicial elections, say, somebody runs for election for the Florida Supreme Court and says I'm going to change that law, I'm going to say that it is not a taking. I think people should be able to walk right up to the land. And that person is elected and the law is changed. Now, is -- is that a judicial taking?
Certainly the case poses important issues under the Fifth Amendment’s Takings Clause regarding judicial takings. However, the oral argument transcript seems more an exploration of property law than constitutional issues; the littoral rights of landowners is not generally bandied about in constitutional law discussions. Nevertheless, the emphasis on rights at common law is a familiar subject in previous takings clause cases. Moreover, every takings clause case the Court considers has the potential to revitalize Lochner-era property rights. As the "Legal Backgrounder" for the Washington Legal Foundation phrases it, at the question in Stop the Beach Renourishment is "Will the Court return some teeth to the Takings Clause, or hammer another nail into property rights’ coffin?"