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

We're continuing our summary of today's oral arguments in Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). The transcript is available here.

The property owners' argument summary is posted here, and the State's argument is here.

Disclosure: we filed an amicus brief in the case supporting the property owners, available here.

U.S.: No Need For Judicial Takings Here

Deputy Solicitor General Edwin S. Kneedler argued for the Obama Administration, which  appeared as amicus curiae in support of the State. Chief Justice Roberts characterized his initial argument -- that this is a "conventional" takings case where the Legislature is alleged to have taken property -- as a "clever ploy," asserting "We're talking about judicial takings and you say, don't look at what the court did, look at what the legislature did. That changes the whole ball game." Tr. at 49. The seasoned pro that he is, Kneedler maintained his balance and argued that "there's no need to fashion a new judicial taking doctrine" when the Court could instead simply hold that the State has taken the property, and not the actions of the state supreme court. Tr. at 51. 

Justice Alito seemed troubled that if Martin v. Busch, 112 So. 274 (Fla. 1927) provided the greatest support for the State's position, then why didn't the Florida Supreme Court mention the case in its opinion:

JUSTICE ALITO: Can I -- Mr. Kneedler, before your time expires, what -- I agree, Martin v. Busch seems to be the case that's most -- provides the greatest support for what the Florida Supreme Court did here. But what do we do about the fact that the Florida Supreme Court didn't rely on it?

MR. KNEEDLER: I -- I think it is surprising, although the Florida Supreme Court did discuss avulsion, but if -- if I could just make one point? This is not a -- a unique notion in Florida law.

This Court's decision in Hughes v. Washington, which dealt with accretion, responded to the -- to the point that was -- that was made there and said, well, the -- the littoral property right is vulnerable anyway because the owner of the adjacent submerged lands can always take action on his own lands that could affect what the upland property owner did.

And this -- and this Court said, yes, that's right, but we're talking, here, about natural causes. And in -- in Hughes, the Court cited two cases, one in Washington State, for example, where the -- where there was an absolute right to fill the submerged lands even if that completely cut off access.

It also pointed out another case from New Jersey where -- where the -- a case of this -- from this Court, where the Court said, you have a right to accretion as long as nobody's filled the land in-between.

Tr. at 54-56.

Property Owners' Rebuttal

Petitioners' counsel Kent Safiret returned for rebuttal, arguing that Martin doesn't say what the State says it does:

First, Martin v. Busch does not stand for the principles that the Respondents suggest they do. The Court in Sand Key said, and in -- and in distinguishing the Martin v. Busch case, and I quote, "Our subsequent decisions show there was no intent to change common law principles regarding the right to accretion and relictions in Martin v. Busch."

And even if it did stand for that principle, Martin v. Busch case didn't discuss whether the landowner was entitled to compensation for the severance of their waterfront property as a result of the lowering of the water.

What also must be noted here, that the State is changing the deeds. They're changing the legal description and the deeds of the Petitioners' members. These Petitioners' members own to the mean high water line. They have a right, not only under Florida common law to own to the mean high water line, under their deeds, that's what they purchased. And there has been a lot of discussion and, I think, maybe some confusion about the right to contact the water.

Tr. at 59-60. In that light, this case resembles Sotomura v. County of Hawaii, 460 F. Supp. 473, 478 (D. Haw. 1978), which held that the Hawaii Supreme Court's decision in County of Hawaii v. Sotomura, 55 Haw. 176, 517 P.2d 57 (1973) deprived the property owner of procedural due process since the court changed the common law without providing prior notice or an opportunity to brief the issue. More on that case here.