Here's the cert petition, filed today by SCOTUS superstar Paul Clement in a case we've been following out of Northern California.
Here are the Questions Presented:
This case involves a stretch of private property along the California coast known as Martins Beach. The California Coastal Commission and the County of San Mateo want Martins Beach to be open to the public, but they do not want to pay to purchase the property, or even for an easement. Instead, they have taken the position that the owner of the property cannot exclude the public unless it first obtains a permit deemed necessary for any change, including a decrease, in the “intensity” of the public’s use of or access to the ocean under the California Coastal Act. In their view, because the previous owner of Martins Beach chose to allow members of the public to access the property upon payment of a fee, the current owner must do so as well—and on the exact same terms, no less—unless and until it obtains a permit allowing it to do otherwise.Respondent Surfrider Foundation took up their cause and convinced the state courts to accept that capacious interpretation of the Coastal Act and to enjoin petitioner from excluding the public from its private property unless and until it obtains a “coastal development permit” allowing it to do so. While the court below recognized that this injunction against exercising the right to exclude constitutes a textbook physical invasion of private property, it nonetheless concluded—in a decision that deepens an entrenched split among the lower courts—that it is not a compensable taking because the possibility of obtaining a permit renders the physical taking “temporary,” and only “permanent” physical takings qualify as per se takings. Thus, under the decision below, petitioner is entitled to zero compensation for a compelled public easement across its private property because of the possibility petitioner could one day obtain a permit allowing it to exercise the most foundational property right, i.e., the right to exclude.The questions presented are:1. Whether a compulsory public-access easement of indefinite duration is a per se physical taking.2. Whether applying the California Coastal Act to require the owner of private beachfront property to apply for a permit before excluding the public from its private property; closing or changing the hours, prices, or days of operation of a private business on its private property; or even declining to advertise public access to its private property, violates the Takings Clause, the Due Process Clause, and/or the First Amendment.More soon.
