We're not going to be filing an amicus brief in support of the petition for cert in the case involving Martin's Beach on the Northern California coast. Masters of the Universe like Paul Clement and his team hardly need help from the kids in the back row.*
The case has been getting a lot of press, first in Northern California where it is a bit of a cause célèbre, and now nationally, with pieces like this article from the Los Angeles Times ("With Supreme Court challenge, tech billionaire could dismantle beach access rights — and a landmark coastal law"). Besides, the poor signal-to-noise ratio in beach cases (as we've written before) often makes hoping for a rational result futile. But the way the LA Times article framed the case (uber rich guy is trying to blow up your beach access!) made us want to point out a couple of things that did not make their way into in the cert petition.
Before we do so, first recall that the issue in the case is "[w]hether a compulsory public-access easement of indefinite duration is a per se physical taking." But wait, you say, this case is Property Owner, Petitioner vs. Surfrider Foundation, Respondent. Surfrider, last we checked, was a private organization and does not have the power of eminent domain, so how can this case involve a taking?
Because the essence of the petition is that this is a judicial taking.
Now before your run fleeing into the wilderness at the mere mention of judicial takings -- after all, how much wood could a woodchuck chuck if a woodchuck could chuck wood? -- bear with us. We know the petition doesn't mention the phrase "judicial taking" directly, and only talks about it indirectly (see Pet. 26-27). We guess this is probably intentional, and a wise move. The last thing the Justices probably look forward to wading into is a doctrinally messy judicial takings case. (Is there any other kind?)
Well yes, this kind. As we pointed out in a post-Stop the Beach Renourishment article, the posture of this case is exactly the kind of case in which the question of "judicial takings" is squarely presented. The Martin's Beach case reminds us of our old favorite, PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), where the appeal (yes, appeal) to the U.S. Supreme Court asserted that the California Supreme Court's decision holding shopping centers were a traditional forum for speech was a taking of the PruneYard's right to exclude.
Same here, where the property owner is asserting that the California Court of Appeal's decision to open the parcel to the public until such time the owner obtains a permit to "allow" him to close it "is a per se physical taking." In short, we think this is a great case in which the Court could confirm what to us is the least controversial aspect of the "judicial takings" canon: that when a court makes a ruling that is alleged to have taken property, the owners' remedy includes invalidation of the judicial act, and not only an award of just compensation. The easiest judicial takings case, like every other takings case, is the one where physical invasion is the result.
Now that we have that out of the way, here are the two items which were not featured in the petition.
First, under California law, an owner doesn't need the government's permission to exercise her right to exclude. If it were not clear enough from the common law, California statutes say so. California Civil Code § 654, presented for your consideration:
The ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others. In this Code, the thing of which there may be ownership is called property.Now, we wish we had remembered this, but fortunately a California colleague pointed it out. One of the reasons we like doing this is that we learn something new every day.
Second, since California property owners have the right to exclude others from their land (something which the courts below recognized), does it make any difference that the prohibition on excluding the public might be "temporary" or "permanent?" The courts below found that that made all the difference, because only permanent takings are physical takings. (We thought this article rebutted that argument pretty well.)
Putting that aside for the moment, our view is that another of old favorites, Kaiser Aetna v. United States, 444 U.S. 164 (1979), is very relevant here. Recall that there, the Court was asked whether the landowners' acceptance of a Corps of Engineers' section 10 dredge and fill permit, and physically connecting a private navigable waterway to the ocean, was enough to say that the owner had somehow surrendered the right to exclude. The majority held that they weren't, and reconfirmed that the right to exclude is a fundamental part of what it means to "own" something. And government-sanctioned trespassing without first taking property isn't any less of a constitutional violation just because there may be a "pull date" on the trespass, or the chance that in the future, the right to exclude may be restored. And isn't there always the possibility that an invasion won't last forever, something we pointed out in this brief in Arkansas Game & Fish, where we wrote that this is a question of compensation, not the threshold question of whether there's been a taking:
Thus, the government cannot avoid liability for a taking when it floods property simply by asserting that it did not intend for the invasion to be permanent. Temporal metaphysics are less important than the actual permanent damage and deprivation of use inflicted by an invasion.
As long as the property is damaged for a length of time, that's good enough.
As an aside, the unusual situation in Kaiser Aetna repeated itself a few years later and resulted in a Ninth Circuit decision which affirmed the principle that the right to exclude is fundamental. See Boone v. United States, 944 F.2d 1489 (9th Cir. 1991), where the government argued that the public's right to navigate upon a waterway predated private ownership and lay "dormant" after the property became nonnavigable, and thus any interference with right to exclude was merely temporary. Same reasoning, same result as in Kaiser Aetna.
Should the Supreme Court grant cert in the Martin's Beach case? You now know what our answer is.
*Any other reason for not filing a brief, you ask? No time, brothers and sisters, no time. Otherwise, we'd be there.