Monday, June 20, 2011
Donna Christie (Florida State) has posted Stop the Beach Renourishment v. Florida Department of Environmental Protection: Much Ado About Nothing? (Stetson Law Review) on SSRN. Here's the abstract:
Florida’s beaches are critical to the State's economy and provide significant protection for upland property, but erosion from natural forces, coastal development, and construction and maintenance of navigation inlets threatens the beaches’ ability to provide these vital services. Of the 825 miles of sandy beach in the State, over 485 miles (about fifty-nine percent) are eroding, with 387 miles of beach (about forty-seven percent) experiencing ‚critical erosion. To protect and manage critically eroding beaches, the Legislature enacted the Beach and Shore Preservation Act (BSPA) directing the State to provide for beach restoration and nourishment projects. The State has spent at least six hundred million dollars on beach erosion control and beach restoration, and the Florida Department of Environmental Protection (DEP) now manages over two hundred miles of restored beaches. In 2006, the Florida First District Court of Appeal put the Florida Beach Erosion Control Program in jeopardy, however, by finding that the BSPA deprived the beachfront property owners of their constitutionally protected riparian rights without just compensation. The case eventually worked its way to the United States Supreme Court. But in the U.S. Supreme Court, the issue of focus was not so much whether riparian rights had been unconstitutionally taken - a unanimous Court agreed they had not - but whether the constitution encompasses a doctrine of judicial takings. This article reviews the Florida and U.S. Supreme Courts' dispositions of the case. Although the State prevailed in both cases, from the Florida perspective, the case left many questions about the legal status of beach restoration and application of the BSPA. At the U.S. Supreme Court level, the case provided a flimsy vehicle for Justice Scalia to introduce his theory of judicial takings. Nevertheless, none of the Justices categorically denied the existence of the concept of a judicial taking; four Justices specifically adopted the doctrine, and six Justices agreed that state supreme court decisions that eliminate existing property rights might be unconstitutional. In the end, the case left the law unsettled in a way that will likely incite property rights advocates to continue to cause "much ado".