Florida Giveth, but Does It Taketh Away?

This fall's Supreme Court calendar features only one environmental law case - a bit of a relief compared with last term, when the Court heard five environmental appeals and the "green" side lost all five. Yet that case, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, is a sleeper with the potential to reshape both the Court's Fifth Amendment takings jurisprudence and its traditional deference to state courts' interpretation of state common law.

What's wrong with "beach renourishment," the innocuous-sounding practice of replenishing sand along storm-eroded coastline, as authorized by Florida statute and carried out at great public expense? According to petitioners, it deprived their property of its "oceanfront" character, by widening the public side of the beach and replacing the traditional dynamic boundary that tracked the mean high water mark with a new, fixed line. They sued in state court - first to enjoin the renourishment program, then for monetary compensation, claiming a taking of their property rights.

The Florida Supreme Court disagreed. In a lengthy opinion that cites Florida case law and authorities dating back to Blackstone, it held that "under Florida common law, there is no independent right of contact with the water"; and that the statute adequately preserves the owners' other rights, including their right of access to the beach and the water. Absent an identifiable lost property right, there could be no taking and no compensation owed. Two Florida justices dissented, and petitioners appealed to the U.S. Supreme Court.

The fine points of Florida property law are now being debated in 25 merits and amicus briefs before the Court, with oral argument set for December 2. But two broader points make this a case to watch. First, the landowners' claims don't fit neatly into federal takings law; indeed, the Florida majority relied on neither the U.S. Constitution nor federal case law. Second, given this absence of a federal claim below, the appeal employed an unusual procedural twist to reach the Court: a new argument that the Florida high court's decision itself effected an unconstitutional "judicial taking."

Supreme Court precedents distinguish between a government's physical occupation of property, as in eminent domain, and regulations that limit a landowners' use of property. The former is a per se taking that must be compensated, whether the physical occupation is total or partial. The latter, "regulatory" taking also requires compensation if it meets the Lucas test of depriving a landowner of "all economically viable use of his land." Less-intrusive regulations are subject to a Penn Central balancing of public and private interests, which is harder for the landowner to defeat.

Here, the metes and bounds of petitioners' land remain the same; their chief grievance is that their parcels aren't expanding along with the widened beach. So the physical takings analysis seems inapt. As for regulatory taking, petitioners claim their use and enjoyment has been diminished by increased distance from the water and public presence on the beach. But they produced no evidence of lost market value, and Florida argues that property values may actually have gone up as a result of protecting the beach from erosion. It is hard to see how the Court can shoehorn the case into either takings category on the record before it, but the four or more justices who granted certiorari have shown some interest.

More troublesome is the notion of a "judicial" taking, which (like Bush v. Gore) runs counter to the presumption that a state's high court is the final arbiter of state law. Petitioners cobbled this argument together from two prior opinions: a concurrence by Justice Potter Stewart in Washington v. Hughes (1967), and a dissent from denial of certiorari by Justices Scalia and O'Connor in Stevens v. City of Cannon Beach (1994). These fragments suggest that if a state court deliberately manipulates common-law doctrine to enable a taking, Supreme Court review might be warranted.

This is the hardest issue in the case: how do we know when a state court is doing what common-law judges do - hearing cases of first impression and filling gaps in the law - and when it is acting in bad faith? The outcome will turn on the Court's willingness, and ability, to articulate a federal standard for telling the difference. Even if it does, the task remains daunting, as any future disagreement with state courts' rulings likewise could only be resolved by direct appeal to the U.S. Supreme Court.

In this light, it's telling that petitioners rely on Justice Stewart, whose best-known contribution to Supreme Court jurisprudence was "I know it when I see it." Like obscenity, a judicial taking is probably in the eye of the beholder. The justices ultimately may balk at the practical implications, and prove no more interested in refereeing the property law of 50 states than in screening pornographic films.

[Image via Nate the Mate.]