By Ed Roggenkamp, environmental law fellow, Environmental Law and Policy Center
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.
According to the plurality, a judicial taking occurs whenever a state court eliminates an established property right. This doctrine would set a floor on common law property rights, a floor that would presumably be enforced by the Supreme Court. But the doctrine could not amount to much of a change in current law. If a judicial taking occurs when a court eliminates established property rights, then the phrase "judicial taking," doesn't add anything to the law - it only means that the court contradicted a relevant precedent, and could be appealed on that ground. This is why I ultimately believe that this case was much ado about nothing. Over the next few years, several court decisions will be appealed as "judicial takings," but those same appeals would already have been made, and their outcome most likely will not change. The judicial takings doctrine may be seen as an expansion of private property rights, but it will probably remain a symbolic one.
The real problem with the Stop the Beach decision is how it was reached. Justices Kennedy and Breyer each wrote concurrences arguing that since no property was taken, there was no need for the court to address whether and when a judicial taking might occur. Breyer's opinion in particular counseled judicial restraint, arguing that the Court did not need to rule on an issue that was unnecessary to resolve the case.
The plurality spent several pages of its opinion ridiculing this call for restraint and attempting to create a new opportunity for the Supreme Court to review decisions grounded in state law. This is exactly the type of judicial activism that conservatives regularly speak out against, that Chief Justice Roberts famously promised to avoid in his confirmation hearings, and that the conservative wing of the court displayed in Citizens United v. FEC, which essentially gave corporations unfettered ability to funnel money from their treasuries into elections. Stop the Beach shows that we should expect more of this conservative judicial activism in the future, unless and until we can confirm justices who will turn Justice Breyer's call for restraint from a concurrence into a majority opinion.
[image via kevindooley]