You mght read the headline of this post and naturally say to yourself, "well, that's obvious." But to the Eleventh Circuit in Kentner v. City of Sanibel, 750 F.3d 1274 (11th Cir. 2014), it wasn't.
In that case, the court concluded that riparian rights are not "fundamental rights" protected by the Due Process Clause from arbitrary and capricious government action, in this case, a ban on the construction of docks and piers (except, apparently, city-owned docks and piers). The court concluded that riparian rights are not "fundamental" rights because they are merely "state-created" rights.
After we read it, the court's rationale was so inexplicable we asked aloud, "[i]f you can figure out the court's logic about why riparian rights are not fundamental, and what is a 'state-created' right (in contrast to a state-created right created by legislative act, or why the legislature's hand triggers greater scrutiny than mere common law rights), please let us know."
Thus, we were greatly relieved when our colleagues at Pacific Legal Foundation took up the case, and today filed a cert petition seeking Supreme Court review of the decision.
Here are the Questions Presented:
This Court has long-recognized that traditional property rights are protected by the Due Process Clause. See Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005), Nectow v. Cambridge, 277 U.S. 183 (1928), and Village of Euclid v. Ambler Realty Co., 262 U.S. 365 (1926). But the lower court in this case held that a firmly entrenched state law property right, namely, the riparian right to build a dock, is not protected by due process. The questions presented are:1. Whether traditional property rights are among those fundamental rights and liberties subject to the substantive protections of due process, per Lingle, Nectow, and Euclid; and
2. Whether a regulatory restriction on the right to use one’s property “must substantially advance a legitimate state interest” to satisfy the substantive requirement of due process, per Lingle, Nectow, and Euclid.
More here from Pacific Legal Foundation, which represents the Petitioners.
Stay tuned.
Petition for Writ of Ceritorari, Kentner v. Cityy of Sanibel, No. ___ (Oct 3, 2014)
