New Article On Florida Beach Judicial Takings Case

The most recent edition of State & Local Law News has an article summarizing the arguments in Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). 

That case, which has been argued and is currently awaiting disposition by the Supreme Court, asks whether a state court is constrained by the Takings and Due Process clauses from rewriting the common law rules of property. [Disclosure: we filed an amicus brief in the case supporting the property owners.]

In Drawing a Line in the Sand: Stop the Beach Renourishment, Inc. v. Florida Dep't of Envtl. Protection, six authors of amici briefs in the case -- including me -- summarized their arguments. I focused on the "background principles" issue, and the notion that certain common law aspects of property are beyond the reach of state court redefinition:

The "judicial takings" question in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Envtl. Prot. boils down to this: can courts "take" property when they change the common law?

Of course they can. The 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 state property law in a manner that threatens to virtually swallow up all regulatory takings. Perhaps more so than state legislatures, state courts may be susceptible to reordering established property norms via abrogation of common law rules, "discovery" of background principles or custom never before enunciated, or expansion of the public trust.

The complete article is posted here. The pdf is posted here. (You may need to be an ABA member to access the site. If you can't, let me know.)

In addition to my summary, Professor John Echeverria, and attorneys Anthony Caso, Gary Oldehoff, Donald Joe Willis, and Julia Wyman contributed to the piece. 

Visit our resource page on the case for the merits and amici briefs, a summary of the oral arguments, and links to media reports.