Report On The ABA Teleconference "Is There Such a Thing as a Judicial Taking? The Lessons of the Supreme Court's Ruling in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection"

Last week, the ABA Section of Real Property, Trust and Estate Law, and the Section of State & Local Government Law sponsored the teleconference "Is There Such a Thing as a Judicial Taking? The Lessons of the Supreme Court's Ruling in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection," discussing the Supreme Court's decision in Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, 130 S. Ct. 2592 (2010).

The case challenged a decision by the Florida Supreme Court as a "judicial taking." The U.S. Supreme Court unanimously concluded that the Florida court's decision did not take property without compensation because the littoral owners right to accretion had always been subject to the state's right to create an artificial avulsion (aka dumping tons of sand in the water to recreate a beach which had eroded). Although unanimous in concluding that there was no taking, the Justices disagreed on how to analyze the issue. Four justices argued that in some circumstances, a state court decision would violate the Takings Clause. Two saw it as a Due Process issue, while two withheld judgment, arguing that the analytical framework should wait for a future case.

I moderated a panel of legal experts who discussed their views of the opinions, and where the Court might go from here. James Burling (Pacific Legal Foundation), John Echeverria (Vermont Law School), Richard Frank, University of California, Davis Law School), and Dan Stengle (Hopping Green & Sams, Petitioner's counsel) were on the panel. Each of us filed briefs in the case. Dan, as the attorney representing Stop the Beach Renourishment, filed the Brief for Petitioners. I filed an amicus brief for Owners' Counsel of America (supporting the Petitioners). Jim Burling filed an amicus for The Cato Institute and Pacific Legal Foundation (supporting the Petitioners). Professor Echeverria supported the Respondents with the amicus brief of the American Planning Association. Professor Frank supported the Respondents with the amicus brief of Coastal States Organization.

Dan led off with an insider's view of the case background. He was followed by the other panelists providing their insights and opinions. Their presentations were followed by questions from the audience. Here's a sample: 

• Are there -- or should there be -- any federal constitutional limitations on the ability off state courts to define, or redefine, "background principles" of state property law?

• If a state legislative act, or an act of a state executive branch can be a regulatory taking, why not an act of the state's judicial branch?

• For the Court to adopt the theory of judicial takings, must it engage in "judicial activism?"

• The issue in the case was whether the Florida Supreme Court's decision takes property. Can a federal court engage in a judicial taking?

• If property rights are defined under state common law, how can a federal court say that a state court's interpretation of state common law is so wrong as to be a taking?

• Why should private property owners be compensated for the state protecting their beachfront homes from storms and sea level rise by replenishing the beaches in front of their homes at public expense? (see "Givings Clause" below).

• Can the U.S. Supreme Court tell state supreme courts that those courts are wrong in saying what their own law is? If yes, is that a chance in a view of federalism?

• Regarding who pays for just compensation for a judicial taking, are there not strong concerns that liability risk would have a chilling effect on court decisions? Doesn't this negatively impact the independence of the judicial branch?

Here are the links to the cases, articles, and other items discussed:

• Florida Supreme Court opinion (Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla. Sep. 29, 2008)).

• The opinion of the District Court of Appeal is available here.

• The "Givings Clause?" - Tom Toles web only sketch from the Washington Post certainly captures one of the arguments made by Florida. Dan Stengle pointed out that the Petitioners never wanted the "renourishment" and argued it wasn't really necessary, and that in oral argument, most of the Justices indicated that any benefit to the littoral property should be taken into account in determining compensation and not liability.

 

• Professor Echeverria's forthcoming article Stop the Beach Renourishment: Why the Judiciary is Different (Aug. 2, 2010).

• Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches, the forthcoming essay on Stop the Beach Renourishment authored by Mark Murakami, Tred Eyerly, and me.