Our Amicus Brief In The Florida Beachfront Takings Case aka The Judicial Takings Case

On September 4, we filed an amicus brief on behalf of Owners' Counsel of America in Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).

In Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court held that a state statute which prohibits "beach renourishment" without a permit did not effect a taking of littoral (beachfront) property, even though it altered the long-standing rights of the owners to accretion on their land and direct access to the ocean. The U.S. Supreme Court is considering whether the Florida court's reversal of more than 100 years of Florida law was a judicial taking, and whether the Florida court's decision violated due process.

Our brief focuses on three issues:

This case concerns whether the 'background principles" exception to per se takings in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 1992), permits state courts to construe local property law in a manner that threatens to virtually swallow up all regulatory takings. Indeed, state courts have been actively encouraged to leverage their power to define background principles to avoid takings....

This brief addresses three issues. First, the notion of "property" embodies core components transcending a state court's power to redefine. The rule of accretion, which insures that littoral parcels remain so, is one of those fundamental components. Second, the remedy for a judicial taking is invalidation of the state court judgment. Third, this brief summarizes several of the more notable instances where state courts have openly and notoriously rewritten established rules of property. This was accomplished under the guise of "correcting" errors in long-standing common law doctrines, reinterpreting terms to alter their commonly understood meanings, or "discovering" that private property is (and has been all along) subject to a public trust.

The brief is posted here.

The property owners' merits brief is available here. The other amici briefs supporting the property owners are posted here, here, and here. More about the case on our resource page and in this report from the Destin Log (the hometown newpaper).