Stop the Beach Renourishment v. Florida

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By Ed Roggenkamp, environmental law fellow, Environmental Law and Policy Center

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These days, most news about the Gulf Coast begins and ends with the BP blowout. Pictures of oiled wildlife, orange marsh grass, and tar balls on white sand beaches have dominated coverage. The city of Destin, in the Florida panhandle, has set up its own Web site to assure residents and tourists that its beaches are open, and a local real estate developer has done the same.

But some residents of Destin have spent the last several years fighting to keep some of Destin's beaches closed. These homeowners bought beachfront property that was later damaged by Hurricane Opal. The city of Destin asked the state, under the 1961 Beach and Shore Preservation Act, for permission to restore the damaged beaches, and the state said yes.

That's where the homeowners came in. Their problem was that the seventy-five feet of sand added to the beach would be owned by the state, and, under a longstanding interpretation of Florida law, would be open to the public. The homeowners, thinking that they had bought houses with private beaches and that their property values would drop if the beaches could be accessed by anyone, fought the restoration. First, they challenged the beach restoration permits. When that failed, they appealed to the courts, arguing that the restoration took their property without just compensation.

That's right; the homeowners argued that restoring their beaches actually took property away from them. What property, one might ask? Two little-known common law rights that amounted to a right to have their property touch the water. Since these rights were taken away, the homeowners argued, the state owed them just compensation. The Florida Supreme Court ruled against them, but a scathing dissent argued that the opinion contradicted several Florida precedents and that the homeowners had to be compensated.

Ordinarily, that would have been the end of the matter, since state supreme courts have the final say on matters of state law. Enter the homeowners' argument on federal grounds: that the Florida Supreme Court's ruling was such a drastic departure from previous cases that it amounted to a "judicial taking" that violated the Fifth Amendment.

There argument failed recently before the U.S. Supreme Court. All eight justices (Justice Stevens recused himself, since he owns beachfront property in Florida) agreed in Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection (pdf), that the Florida Supreme Court correctly interpreted the common law and that there was no taking. But Justice Scalia, writing for himself, Chief Justice Roberts, and Justices Alito and Thomas, went further, attempting to set out a new doctrine of judicial takings.