Titus' Take on Stop the Beach Oral Arguments

I have to say, Jim Titus is on the ball and he does his homework.  Here's his follow up e-mail to me about Stop the Beach:

I got into the oral argument yesterday at Stop the Beach Renourishment v. Florida DEP and then went over to the post-game show at Georgetown.   It seems to me that  the plaintiff's lawyer overstated the common law antecedents of the idea that littoral property must "touch the water" as distinct from the accretionary right.  I suggested that since the predicate for the right to accretion had always been the reciprocal loss of land or cost of holding back the sea, then once the state takes on those costs, removal of that predicate is a sound common law reason for disallowing the  right to accretion.  He told the forum that there was a right to have one’s property touch the water in Blackstone (in addition to right to accretion).  That is wrong.  A new paper by Joe Sax (possibly still in draft) shows that the early cases had nothing to do with any of these modern littoral rights.  The judges struggled with the notion that on the one hand boundaries usually do not move and the King’s land ought not transfer to private owners just because the shore advanced; but on the other hand, the very gradual additions of land had the most value to the upland owner and little value to the King.  The right to accretion was justified by the reciprocal problem of losing land to erosion and/or having to spend money to hold back the sea.  Boundaries moved with the shore because that was the most practical way to allocate the creations of small amounts of land.  But in the case of an avulsion creating land, the boundary did not move.   Even the idea of access to the water being a littoral right came much later—after the American Revolution. But the reasoning was about access to the water, not about excluding others.

The plaintiff also insists that the common law right to recovery was not just a right to fill back land lost to the sea but also included a right to excavate any avulsion on the King's land between the owner's land and the sea.  That is totally at odds with early common law, whose focus was on preserving the King’s ownership of the King’s land, often along the English Channel where accretion often brought new land.  The right to reclaim land that you lose to the sea is very different from the right to destroy the King’s land just so you can have waterfront property.   Especially during a period of time when riparian lands were generally not used for shorefront dependent uses, but the King might be able to use the new land for a fortification.
 
But the most clever part of his argument was his explanation for why the loss of the accretionary right—if a taking—would be a judicial rather than a legislative taking.  The plaintiff argues that the Act’s savings clause, which authorizes compensation through eminent domain if the requirements of the Act would be a taking, implies that the taking did not occur when the statute was passed 50 years ago.  It didn’t occur until the Court ruled that there was no taking and denied just compensation—at which point it was a judicial taking because the court failed to follow the law.   Under that reasoning, every legislative takings claim lost in state court, even over very old legislation, could be a judicial taking if the statute had a provision for just compensation.

Now, if I just understood sea level rise science as well as Jim understands the common law, I'd really be in business!

Jamie Baker Roskie