Beach Takings Case Resources (Stop The Beach Renourishment v. Florida Dep't of Environmental Protection)

Update: the Supreme Court heard oral arguments on December 2, 2009. The transcript and our summary of the arguments are posted here (Petitioners' argument), here (Respondents' argument), and here (United States as amicus).

Here are links and other items of interest about Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).

In the decision under review (Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla. Sep. 29, 2008)), the Florida Supreme Court held that a state statute which prohibits "beach renourishment" without a permit did not effect a taking of littoral (beachfront) property, even though it altered the long-standing rights of the owners to accretion on their land and direct access to the ocean.

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

Questions Presented

The cert petition presents three questions:

The Florida Supreme Court invoked "nonexistent rules of state substantive law" to reverse 100 years of uniform holdings that littoral rights are constitutionally protected. In doing so, did the Florida Court's decision cause a "judicial taking" proscribed by the Fifth and Fourteenth Amendments to the United States Constitution?

Is the Florida Supreme Court's approval of a legislative scheme that eliminates constitutional littoral rights and replaces them with statutory rights a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

Is the Florida Supreme Court's approval of a legislative scheme that allows an executive agency to unilaterally modify a private landowner's property boundary without a judicial hearing or the payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

On the first question, while the Court has implicitly recognized that a taking can occur if a court decision departs from long-standing principles, it has yet to directly address the question. The cert petition raised a split in lower court authority by pointing out that in Robinson v. Ariyoshi, 753 F.2d 1468 (9th Cir. 1985), the Ninth Circuit held the Hawaii Supreme Court's radical restructuring of Hawaii riparian water rights in the McBryde case was a judicial taking (the U.S. Supreme Court reversed Robinson on the basis it was not yet ripe for review under Williamson County).

Merits Briefs

• Brief for Petitioners (property owners)

• Brief for Respondents, Florida Department of Environmental Protection & Board of Trustees of the Internal Improvement Trust Fund

• Brief for Respondents Walton County and City of Destin

• Property owners' reply brief (to be posted when filed)

Amicus Briefs (supporting property owners)

• Owners' Counsel of America

• Cato Institute and Pacific Legal Foundation

• Citizens for Constitutional Property Rights Legal Foundation, Inc.

• American Civil Rights Union

• New Jersey Land Title Association

• Eagle Forum Education & Legal Defense Fund

• Oregonians in Action Legal Center

• Save Our Beaches and the Southwestern Legal Foundation

• New England Legal Foundation

• Save Our Shoreline

• Coalition for Property Rights, Inc.

• The Center for Constitutional Jurisprudence

• National Association of Home Builders and the Florida Home Builders Association

Amicus Briefs (supporting the government)

• Amicus brief of Brevard County, Florida

• Amicus brief of the United States

• Amicus brief of the American Planning Association

• Amicus brief of the National Association of Counties, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, and International Municipal Lawyers Association

• Amicus brief of Coastal States Organization

• Amicus brief of The Florida Shore and Beach Preservation Association

• Amicus brief of the Surfrider Foundation

• Amicus brief of 26 States

Cert Petition Briefs

• Cert petition, BIO's and amicus briefs (via SCOTUSblog)

Media Links and Background

• The decision below: Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla. Sep. 29, 2008)

• ABA Journal: Surprise: Supreme Court Grants Cert in Beachfront Takings Case

• ABA Journal: Up Against the Seawall (includes pithy quote from inversecondemnation.com)

• Supreme Court's Regulatory Takings Case Draws Widespread Interest
  (New York Times Greenwire blog on amici supporting the government)

• Property Rights Groups Assemble Support in Regulatory Takings Case(New York Times Greenwire blog on amici supporting the property owners)

• Florida Land Use Law blog's take on the Florida Supreme Court decision

• PropertyProf Blog's brief reaction to the cert grant

• Eminent Domain Law Blog (Owners' Counsel of America) summary

• Volokh Conspiracy: Supreme Court Takes Regulatory Takings Case

• Dwight Merriam's thoughts at IMLA's Local Government blog.

• New Jersey Eminent Domain Law blog's summary

• Pacific Legal Foundation's (the only organization to file an amicus at the cert stage) summary of the issues

• Law of the Land blog's summary

• The Tide is Turning for Property Rights (commentary on case from the Property and Environmental Research Center)

• On Judicial Takings, And The Hawaii Water Rights Backstory In Stop The Beach Renourishment - our summary of Robinson v. Ariyoshi, 753 F.2d 1468 (9th Cir. 1985) and Sotomura v. County of Hawaii, 460 F. Supp. 473 (D. Haw. 1978), two cases regarding judicial takings relied upon by the cert petition,

• Dickens Was a Piker! - Professor Gideon Kanner's reaction to the above post

• The Hawaii case presenting a similar issue regarding a legislative rewriting of the common law rule of accretion. See Maunalua Bay Beach Ohana 28 v. State of Hawaii, an appeal now pending in the Intermediate Court of Appeals. We filed an amicus brief in the case, a copy of which is available here.