SCOTUS Oral Arguments In The Judicial Takings Case: Are "Background Principles" Of Property Law Completely Up To State Judges? (Part II)

We're continuing our summary of the oral arguments in Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), the case in which the Court is considering the theory of "judicial takings" and whether state courts are constrained by the Fifth Amendment if they suddenly and dramatically change state property law. Disclosure: we filed an amicus brief in the case supporting the property owners, available here.

The transcript is available here, and the property owners' opening argument summary is here.

A Matter of Inches?

Scott D. Makar, the Florida Solicitor General, argued for the State. He began by distinguishing artificial avulsion and accretion. Tr. at 27-28. He characterized the renourishment as an avulsion, meaning the state would own the new beach under common law:

CHIEF JUSTICE ROBERTS: Well, is your view whenever the State does it, it's an avulsion?

MR. MAKAR: If it's not -- if it's not its property, that's absolutely the case.

Tr. at 28. Makar backed off of that position, and acknowledged that accretion does not become avulsion simply because the state accomplishes it. Tr. at 29. The issue, he argued, is how fast or slow the beach grows. Chief Justice Roberts tried to narrow down the issue:

CHIEF JUSTICE ROBERTS: A foot -- are we dickering over the distance?

MR. MAKAR: We are, I think, because in this case what happened --

CHIEF JUSTICE ROBERTS: Well, then, wherever you want to say it's an accretion, an inch, six inches.

Tr. at 30-31. 

Justice Alito jumped in, asking whether extending "these concepts of accretion or avulsion to things that are done by the State. If someone owns beachfront property, they accept -- they -- they understand the risk that a hurricane may cause avulsion, a hurricane may knock down their house. Does that mean the State could come in and knock down the house and say this is an artificial avulsion?" Tr. at 31. When Makar responded "no," Alito suggested that there is a difference between the state accomplishing the act, as opposed to nature, which could be the fundamental change that the property owners argue is a trigger to a judicial taking. Tr. at 32.

Next, Makar agreed with Chief Justice Roberts that in certain situations, the state could be liable for a judicial taking. Roberts posed a hypothetical under which a person runs for the office of state judge and includes in his or her platform a promise to change the state's common law of property. Tr. at 33. He asked if that occurs, and the person is elected and the state court does change the law would that be a judicial taking? The point he seemed to be getting at is whether there is a judicial taking if a state court openly acknowledges that it is radically changing the common law of property. [Barista's note: are we back to pretext as in Kelo?]

Sand Key or Martin?

The arguments next focused on a Florida case, Bd. of Trustees v. Sand Key Assoc., Ltd.,512 So.2d 934 (Fla. 1987). The property owners asserted this case recognized the right they assert was ignored by the Florida Supreme Court in this case, the right of their parcels to touch the ocean. Makar disputed that notion, arguing that this was not a holding of Sand Key, and that the true rule of decision is found in an earlier Florida case, Martin v. Busch, 112 So. 274 (Fla. 1927). Justice Scalia saw things differently:

JUSTICE SCALIA: Sand Key's statement strikes one as -- as correct simply because I think that's -- that's the view of the common law. I -- I don't think that's unique or distinctive to Florida. I think it would be very strange to have a principle that all the -- all the littoral owner gets is a right to access the water and not the right to be on the water, to have his property on the water.
I think -- I think in every State a --beachfront owners would be astounded to learn that that's the case.

So, I -- you know, I thought that Sand Key was just expressing what -- what was the common law. And the notion that the only purpose of the contact with the water is so that you can have access, that is -- is that not silly?

Tr. at 36-37.

The Spring Break Act of 2010

Justice Alito posed a hypothetical: if the city created a huge beach in front of privately owned homes in order to attract students for spring break, wouldn't that, he asked, be valid under the state's theory of the case? Tr. at 39. The Justices seemed a bit frustrated that instead of responding to the hypothetical, Makar argued that it did not represent the facts of the case, Tr. at 39-42, but eventually got their answer:

JUSTICE BREYER: Okay, that's what I wanted to know. What more?

MR. MAKAR: What the legislature in Florida did as well is to say that when they do the survey, as you see in the document attached in the joint appendix, they have to set out what the width of the berm will be, the sacrificial sand that's there to erode away over time. They put the width in there. And in this particular instance it's about 75 feet. And it's going to erode away. That cannot be increased without the consent of the owners.

Tr. at 42.It appears that Makar was suggesting that the Beach and Shore Preservation Act -- as applied by the Florida Supreme Court -- did not take any rights away from property owners, but added to them. To which chief Justice Roberts responded by returning to the earlier colloquy with petitioners' counsel about whether this issue is one of compensation, not liability. Tr. at 42-43.

If the Legislature Does it, it's a Taking

The state's argument wrapped with the concession that if the Legislature were to do what the property owners claim the Florida Supreme Court did it would likely be a taking:

CHIEF JUSTICE ROBERTS: So on behalf of the State you concede if any of this list -- these -- the list of good things that the land owner gets, if the legislature next year takes them away that would be a taking?

MR. MAKAR: Sure, if they took away the -- the swath of littoral rights or a substantial portion, that would be highly problematic and likely be a taking.

Tr. at 46.

Next up, the arguments of the Obama Administration and the petitioners' rebuttal.