The Supreme Court has just issued its opinion in Stop the Beach Renourishment v. Florida Department of Environmental Protection, a key property rights case. Unfortunately, the most important constitutional issue at stake – what, if any government actions count as “judicial takings” remains mostly unresolved. I summarized the facts of the case here:
Under Florida’s Beach and Shore Preservation Act (the Act), the state government is required to establish “renourishment” projects to restore waterfront land that has become “critically eroded.” Once the projects are complete, the Act gives the state title to any newly dry land that has been cleared as a result of the project’s pushing back the waterline. This deprives waterfront property owners of their previously existing right to ownership of land up to the “mean high water line” (MHWL). This is exactly what happened to the six waterfront property owners in Florida’s Walton County, whose holdings abutted a renourishment project established in the area. The property owners formed a group called Stop the Beach Renourishment, which is the petitioner in this case.
The project established in their area resulted in the creation of additional dry land between the property owners’ holdings and the ocean – land which was claimed by the state. The property owners argued that the state’s acquisition of land inside the MHWL constitutes a taking that requires compensation under the Takings Clause of the Fifth Amendment. The Florida Supreme Court ruled against the property owners, holding that state law did not give them the right to own all property up to the new MHWL created by the project. The property owners now argue, in the U.S. Supreme Court, that the Florida court decision amounts to a “judicial taking” that deprived them of property rights through a sudden and unexpected revision of state law by the state judiciary.
The Supreme Court held unanimously (8-0, with Justice John Paul Stevens recusing himself) that the Florida Supreme Court’s decision against the property owners did not materially alter previous Florida jurisprudence, and therefore ruled against the property owners. However, the Court did not issue any ruling on the far more important issue of what counts as a “judicial taking” under the Takings Clause of the Fifth Amendment.
I. The Four Justice Plurality Opinion.
Justice Scalia’s plurality opinion, signed by the four most conservative justices, holds that judicial takings do occur and implies that federal courts should not be especially deferential to state courts in determining whether one has happened:
States effect a taking if they recharacterize as public property what was previously private property…. The Takings Clause… is not addressed to the action of a specific branch or branches. It is concerned simply with the act, and not with the governmental actor…. There is no textual justification for saying that the existence or the scope of a State’s power to expropriate private property without just compensation varies according to the branch of government effecting the expropriation. Nor does common sense recommend such a principle. It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat…
Our precedents provide no support for the proposition that takings effected by the judicial branch are entitled to special treatment, and in fact suggest the contrary. [emphasis added]
The plurality says that a judicial taking occurs any time a state court “declares that what was once an established right of private property no longer exists,” and should be treated the same as any other taking by a state government. The fact that it was done by the judiciary rather than by legislature or executive should not matter.
The plurality’s approach strikes me as sound. However, it did not get the support of a majority of justices.
II. Justice Kennedy’s Concurrence.
In a concurring opinion, Justice Anthony Kennedy (joined by Justice Sonia Sotomayor) argues that these kinds of cases should be analyzed under the Due Process Clause of the Fourteenth Amendment rather than under the Takings Clause of the Fifth Amendment. He contends that a “The Court would be on strong footing in ruling that a judicial decision that eliminates or substantially changes established property rights, which are a legitimate expectation of the owner, is ‘arbitrary or irrational’ under the Due Process Clause.”
Kennedy does not make clear what counts as an “established property right” that is a “legitimate expectation of the owner.” The reference to the “arbitrary or irrational” standard suggests that only the most extreme departures from previous precedent would count as judicial takings.
Since Kennedy is likely to be the key swing voter on this issue (as on many others), his position in future cases will be very important. It is also very unclear.
Kennedy makes a variety of arguments in defense of his claim that the Due Process Clause is a better hook for these kinds of claims than the Takings Clause. None of them strike me as persuasive. This one is probably the most important:
The usual due process constraint is that courts cannot abandon settled principles…..
But if the state court were deemed to be exercising the power to take property, that constraint would be removed. Because the State would be bound to pay owners for takings caused by a judicial decision, it is conceivable that some judges might decide that enacting a sweeping new rule to adjust the rights of property owners in the context of changing social needs is a good idea.
The idea, then, that a judicial takings doctrine would constrain judges might just well have the opposite effect. It would give judges new power and new assurance that changes in property rights that are beneficial, or thought to be so, are fair and proper because just compensation will be paid.
Kennedy’s point is greatly overstated. If judges enact “sweeping new rule[s]” that amount to takings under federal constitutional law, those rulings would probably be invalid under state law as well. In virtually all states, the power to take property is reserved to the legislature. By definition a judicial taking is one that is not authorized by the legislature. Even if a judicial ruling could be a taking under federal law without requiring legislative authorization under state law, legislatures are likely to be vigilant about forestalling and reversing judicial rulings that end up costing them large amounts of money – if only because legislators would probably prefer to spend the funds on their own favorite programs.
Strangely, even as he argues against applying the Takings Clause to these issues, Kennedy leaves open the possibility that it might potentially be applicable in some future judicial takings case.
Finally, Justice Breyer (joined by Justice Ginsburg) argued that the issue of what counts as a judicial taking need not be resolved in this case and refuses to take a position on the issue.
III. The (Very Uncertain) Bottom Line.
In sum, we know that at least six justices believe that at least some judicial actions qualify as unconstitutional takings (even if only under the Due Process Clause). We don’t, however, know much about what the relevant standards for identifying judicial takings are. If Justice Kennedy turns out to be the key swing voter in future cases, it’s possible that state courts will get a lot of deference, since only “arbitrary and irrational” judicial deprivations of previously established property rights would be overturned. However, I’m far from certain that I’m interpreting Kennedy’s vague statements correctly.
Property rights advocates avoided the worst-case scenario: a Supreme Court ruling holding that there is no such thing as a judicial taking that requires compensation under the Constitution. Whether they have won anything more than that remains to be seen. As Ben Barros at Propertyprof Blog puts it, “we will see a lot of litigation on these issues in the near future.”
IV. The Role of Justice Sotomayor.
Commentators such as Josh Blackman and Ben Barros point out that Justice Sotomayor joined Kennedy’s opinon rather than Breyer’s and suggest that this means she may be more supportive of property rights than I previously thought. However, for reasons noted above, it’s far from clear whether Kennedy’s approach really provides much in the way of protection for property owners. It’s also not clear whether that approach will turn out to be more or less protective than whatever rule Breyer and Ginsburg endorse in a future case where they are forced to confront the issue.
We also don’t know whether Sotomayor will continue to agree with Kennedy when and if the latter fleshes out some of the extremely vague points in his opinion. Kennedy and Sotomayor might turn out to have different interpretations of what counts as “a judicial decision that eliminates or substantially changes established property rights, which are a legitimate expectation of the owner.” They might also disagree on the meaning of “arbitrary and irrational,” as applied to judicial takings cases.
UPDATE: In addition to the analyses by Barros and Blackman, Ilya Shapiro and property rights specialist Tim Sandefur have also given their takes on the case. Both are somewhat more optimistic about the implications of the Court’s decision for protection of property rights than I am.
Steve says:
I guess that’s six votes in favor of constitutionalizing stare decisis, but I don’t really get it.
Justice Kennedy argues that recognizing the doctrine of judicial takings would create a sort of unfunded mandate: a court effects a change in property law, and suddenly the legislature has to find money to compensate everyone who’s affected. Scalia responds that it’s not so, because if a court does such a thing, the Supreme Court will simply reverse and say “sorry, that was an uncompensated judicial taking and we’re reversing it; only the legislature can change that law, and they have to enact a compensation scheme if they do so.” Now, how much sense does that make?
First, it implies the Supreme Court has a constitutional obligation to grant certiorari each and every time a state court does something that can be construed as a judicial taking. Ouch. That’s going to swell the docket. No wonder this position only got four votes.
Second, and perhaps more significant, who is going to step in if the Supreme Court commits a judicial taking? Let’s imagine that Scalia got a majority today, and then tomorrow, I dunno, maybe the Supreme Court invalidates EVERY BUSINESS METHOD PATENT IN EXISTENCE. Uh oh, that’s going to be one expensive bill. I hope Justice Thomas had the good sense to title the RV in his wife’s name.
June 17, 2010, 5:11 pmMark N. says:
The plurality seems not to explain what would count as an “established right of private property”. Is it enough that courts have simply recognized it? Say a supposed right of private property were first recognized in an erroneous court decision misinterpreting a statute, and a later court, recognizing the error, overruled that decision, returning to the interpretation actually intended by the legislature. Is the second decision a “judicial taking”? It does remove a heretofore recognized property right, but one that was never legitimate to begin with (since it was never enacted by a legislature).
June 17, 2010, 5:30 pmIlya Somin says:
[W]ho is going to step in if the Supreme Court commits a judicial taking?
Since there is no federal common law of property, except in a few isolated areas, that is not a likely possibility. If it did happen, Congress could “step in” and make any needed statutory changes.
Let’s imagine that Scalia got a majority today, and then tomorrow, I dunno, maybe the Supreme Court invalidates EVERY BUSINESS METHOD PATENT IN EXISTENCE. Uh oh, that’s going to be one expensive bill.
Congress could and would reverse the decision, and there would be no shortage of interest group lobbying to make them do so.
June 17, 2010, 5:32 pmIlya Somin says:
Say a supposed right of private property were first recognized in an erroneous court decision misinterpreting a statute, and a later court, recognizing the error, overruled that decision, returning to the interpretation actually intended by the legislature. Is the second decision a “judicial taking”?
I think the plurality correctly assumes that the relevant standard for determining whether there was a taking in such a case would be exactly the same as that which applies if the judicially-created property right were eliminated by new legislation.
June 17, 2010, 5:35 pmSteve says:
Congress could and would reverse the decision, and there would be no shortage of interest group lobbying to make them do so.
That doesn’t sound like a very serious answer. Any time the Supreme Court invalidates a patent or some other form of intellectual property right, Congress is certain to overturn the decision? Are the Justices supposed to sit around saying, “We can’t rule against the patentholder, it would be an uncompensated judicial taking on our part… but wait, Congress will overrule us anyway, so it’s ok”?
And let’s say Congress doesn’t pass such a law after all. Is the Supreme Court going to rehear the case and reverse itself, having committed an uncompensated judicial taking of all those patents? Maybe Scalia should be happy he couldn’t find five votes, because this sure sounds like a mess.
June 17, 2010, 5:49 pmlgm says:
I would appreciate some examples or hypotheticals to illustrate these points. Here’s one: A whites only private school is at first tolerated by the courts but finally ordered to integrate. Enrollment drops as a result, costing the owners money. Should the court compensate the school for lost income?
I think not. The court is not revoking a right, but annulling it. It is declaring that the right never existed in the first place.
June 17, 2010, 5:51 pmGuy says:
I think the unspoken assumption is that only “wrong” decisions are takings, and, of course, the Supreme Court is (by definition?) never legally wrong.
This makes me think of Bush v. Gore, where the conservatives were much more receptive to the idea that judicial acts could be essentially legislative in character. It’s hard to explain this attitude without thinking that conservatives might believe that “judicial activists” are “legislating from the bench” in bad faith.
June 17, 2010, 6:22 pmbyomtov says:
I second lgm’s request for an example. In the actual case, didn’t the FL court just uphold a FL statute? Why would the taking, if there was one, be judicial rather than legislative?
June 17, 2010, 6:30 pmStan says:
It is intriguing to note that the State action here did totally destroy vested property interests for free. Legislative counsel will be working overtime to find creative ways to enact statutory schemes that hit this sweet, sweet spot.
June 17, 2010, 6:40 pmJardinero1 says:
The state of Florida could get rid of the law which, as a practical matter, protects beachfront property owners Florida would cease renourishing beaches in front of beachfront buildings and the subject property would be allowed to become part of the ocean, eventually.
Some people really don’t know what’s good for them.
Or the state of Florida could cave in and pay the property owners for their property but also bill them for the repairs and improvements to the property prior to the sale.
Or the state of Florida could let the property owners keep the new land but bill them for the repairs and improvements to the land.
June 17, 2010, 6:43 pmEMB says:
Tomorrow would be a great day for capitalism!
Seriously though, have courts ever found unconstitutional takings when there is no tangible property actually taken from the owner? (e.g. this case, where anything but an 8-0 would have been surprising even if everyone agreed that judicial takings)
June 17, 2010, 6:46 pmStephen Lathrop says:
Could someone please check me to see what’s wrong with this, because I must not understand what’s going on. It seems to me that:
1. Some property owners in Florida bought land that was subject to coastal erosion, a circumstance that is entirely foreseeable;
2. When the foreseeable erosion occurred, the property owners asserted that the state had a legal obligation to expend public money on behalf of the property owners, and in so doing to extend their property beyond the existing (after erosion) high water mark, which was then the property line;
3. The new property thus created out of the ocean was now the property of the property owners, who had expended nothing to get it, and who did not own property in that location before the state created it;
4. Because if the state did not give the property owners the new property, the state had thereby taken the property it had created but not given them;
5. Or, alternatively, that the property owners, having purchased beachfront property, had a right, regardless of natural phenomena, to beachfront property in perpetuity, and if the state did not back that property right with its full faith and credit, then it was taking the beachfront property right of the property owners?
Please explain why that’s wrong, because if it’s right it’s just insane.
June 17, 2010, 7:11 pmSteve says:
Seriously though, have courts ever found unconstitutional takings when there is no tangible property actually taken from the owner?
Well, consider Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), one of the principal regulatory takings cases. The government didn’t take any of the plaintiff’s tangible property, they just said he couldn’t build anything on it. What was taken from him was not physical property, but the intangible right to derive economic benefit from his property. Maybe that’s an answer.
June 17, 2010, 7:35 pmStan says:
You should read the briefs, but over simplifying:
June 17, 2010, 8:03 pmDjDiverDan says:
That’s not really the case at all. Rather, what the Florida Court held, and the Supreme Court affirmed, is that the littoral rights of the owners of waterfront property included rights of accretion – i.e., the right to own any additional land as the mean high water line moved seaward by means of naturally occuring build-up of sediment over time, but that the common law had never recognized the littoral rights to include land added by avulsion – a sudden movement of the high water mark by means of man-made fill of the land to the seaward of the high water line. Further, while the common law recognized a right of access to the water as part of the littoral rights of the waterfront property owners (a right which was expressly reserved to the beachfront owners under the Florida statute), it never recognized an independent right to maintain contact with the water, separate and apart from the right of access. Consequently, the “property rights” allegedly taken were simply never recognized at common law as part of the “bundle of sticks” owned by the owner of a waterfront property owner. Further, people who are outraged over this case fail to recogzize that we are talking about the rights of not just the waterfront owners, but of the rights of two competing property owners – (1) the beachfront property owners, who own only to the mean high water line, and a contingent right to own additional land as the high water line moves through natural accretion (along with the risk that land will be lost as the mean high water line moves inland as a result of natural erosion); and (2) the State, which is and has always been (well, since statehood, at any rate) the owner of the seabed and all land seaward of the mean high water line. As to the rights of the State, just like the owner of a swamp could at common law reclaim usage of the land by means of filling in the swamp, so too could the State increase the area of usable land by building up the beach with dredged sand. And if that results in the mean high water line moving seaward, the additional land has been added not by accretion, but by avulsion, and it belongs to the State. The beachfront property owner has lost nothing, other than the mere speculative possibility that his land might have increased by natural accretion, but he has also been spared any risk that his land would have been lost through non-compensable natural erosion. He still has his right of access to the water, and his right of unobstructed view.
June 17, 2010, 8:20 pmStan says:
DJDiverDan: Did you read the case? From Scalia’s opinion for eight justices:
June 17, 2010, 9:04 pmIlya Somin says:
IS: Congress could and would reverse the decision, and there would be no shortage of interest group lobbying to make them do so.
That doesn’t sound like a very serious answer. Any time the Supreme Court invalidates a patent or some other form of intellectual property right, Congress is certain to overturn the decision? Are the Justices supposed to sit around saying, “We can’t rule against the patentholder, it would be an uncompensated judicial taking on our part… but wait, Congress will overrule us anyway, so it’s ok”
My original response was to the claim that the sky would somehow fall if the Court invalidated “EVERY BUSINESS METHOD PATENT IN EXISTENCE.” Merely invalidating one form of intellectual property right of some kind would not be such a terrible thing, even if the government had to compensate people for it. Besides, Supreme Court action of that kind is extremely uncommon, if not nonexistent. What would be the incentive for the justices to do it?
June 18, 2010, 12:43 amIlya Somin says:
First, it implies the Supreme Court has a constitutional obligation to grant certiorari each and every time a state court does something that can be construed as a judicial taking. Ouch. That’s going to swell the docket. No wonder this position only got four votes.
Nowhere does the opinion say any such thing. When lower state courts do a judicial taking, that can be readily handled by lower federal courts. When state supreme courts do such a thing, the US Supreme Court may indeed be the only recourse. But they still aren’t required to grant cert, just as they are not in cases where federal courts of appeal do something unconstitutional and the SUpremes are the only available remedy.
June 18, 2010, 12:45 amSteve says:
My original response was to the claim that the sky would somehow fall if the Court invalidated “EVERY BUSINESS METHOD PATENT IN EXISTENCE.”
I didn’t say the sky would fall, I said the Court would run up against its own logic if it held that courts aren’t constitutionally allowed to alter property rights, and then affirmed Bilski the next day. I was not presenting some kind of wacky scenario, unless you think it is implausible Bilski will be affirmed.
Merely invalidating one form of intellectual property right of some kind would not be such a terrible thing, even if the government had to compensate people for it.
It’s not all that problematic that the government would have to compensate people, although it’s conceptually odd that the government would be constitutionally obligated to pay people because it mistakenly allowed them to patent things which were actually unpatentable, particularly since they may have profited handsomely from the government’s mistake in the meantime.
What is problematic is that under a theory of judicial takings, it would be impermissible for the Supreme Court to invalidate business method patents, since they’re not in a position to pay compensation to the aggrieved parties. Instead, following Scalia’s logic in Stop the Beach, only Congress would have the power to set things right. It wouldn’t even matter if the Court thought business methods should be unpatentable; they wouldn’t be allowed to rule that way.
What I disagree with is your suggestion that it would be okay for the Court to effectuate a judicial taking as long as Congress came along later and awarded compensation to the aggrieved parties. That’s an unworkable system and I don’t think anything in Scalia’s opinion would allow for it.
When lower state courts do a judicial taking, that can be readily handled by lower federal courts.
The lower federal court would reverse the judgment of the lower state court? Can you point me to the statute by which the lower federal court would become empowered to hear that appeal?
June 18, 2010, 1:19 amGuy says:
Obviously we need to pass a habeas locus statute to allow for collateral attack.
June 18, 2010, 3:06 amBrett Bellmore says:
What’s unclear about the outcome? It’s clearly in line with the way some circuits treat the 2nd amendment: A right which theoretically exists, but which will never in practice be found to have been violated.
The Court has just acknowledged the theoretical existence of judicial takings, while making it clear that they are, in practice, never going to admit that one has happened.
June 18, 2010, 7:12 amSteve says:
Maybe, when even Justice Thomas thinks this was simply a weak judicial taking claim on the merits, that’s what it actually was. Or maybe they were afraid Democrats might assassinate them.
June 18, 2010, 8:08 amOrion says:
SCOTUS reversing a state court’s decision interpreting purely state law is a fundamentally different thing than SCOTUS invalidating a state statute, though.
And what if it wasn’t the state supreme court reversing its earlier decision; what if they were narrowing a certain property right that had never been recognized by statute or the state SC, but that had been consistently recognized by lower state courts? Wouldn’t that be a “judicial taking” too? Or what if the state SC was simply reversing a lower court’s decision on appeal, but the case had been pending for many years, during which the property right was incorrectly recognized?
I think the issues raised here are far more complicated than the plurality and you seem to think. The plurality’s standard is problematic because it has the potential to prevent the normal judicial error correcting process from taking place and would make erroneous state court decisions in property cases binding on the state for all eternity.
Breyer actually had the right idea here — it is unnecessary to decide these difficult issues today, since even if assuming the plurality’s pro-property rights standard, the takings claim fails.
June 18, 2010, 8:11 amDjDiverDan says:
Stan, yes, I did in fact read the case — as well as significant excerpts from the older Florida cases cited by Scalia and excerpts from Blackstone on real property rights. I fear that it is you who are confused — changing the “character” of property as beachfront property, or even diminishing the value of that property is NOT the equivalent of “taking” the property — a “taking” can only occur if a property owner loses a legally cognizable right with respect to the property, and that simply didn’t happen here. While the beachfront owners may have assumed that their property would always be right on the waterfront, that assumption was mistaken, and failed to account for legal principles which had been recognized since Blackstone – that the State, as the owner of the seabed up to the mean high water line, had the legal right to fill its property, and if it did so, it would continue to own all of the land it reclaimed through fill, right up to the mean high water line as it existed prior to any filling. Your mistake is to confuse the physical characteristics of land which may contribute to its market value and the legal principles of property law which delimit the rights of “ownership”.
Imagine, if you will, that the City of Chicago decides to buy up the four city blocks immediately adjacent to the Sears Tower and constructs on each of those blocks a 250-story skyscraper, completely blocking the view from any side of the Sears Tower and leaving the Sears Tower a relative midget in the shade of its much loftier neighbors. Would that significantly alter the character of the Sears Tower? Absolutely. Would it diminish its value? Certainly – who wants to pay Class A Building rent for office space with no sunlight and no view? Would it be a “taking”? No – the City had the same rights to build on the adjacent blocks as Sears did when it built the iconic tower.
June 18, 2010, 9:43 amFinger on the Pulse: From Our Blogosphere and Beyond « The Legal Pulse says:
[...] GMU Law’s Ilya Somin on Stop the Beach Renourishment (Volokh Conspiracy) [...]
June 18, 2010, 12:21 pmRedman says:
I wish the Supreme Court, and all appellate courts for that matter, would cease the issuance of any written opinions other than the majority opinion.
No concurring or dissenting opinions. If justice X wants to dissent, simply write “I dissent”. What purpose is served by publishing a written dissent serve?
Same thing, and even moreso, with concurring opinions.
I’m not saying the opinions cannot be written. Any opinions other than the majority should be circulated only among the justices, and not made public. This would preserve the benefit, if any, of the persuasive power of these opinions on the other justices.
June 18, 2010, 1:46 pmSteve says:
What purpose is served by publishing a written dissent serve?
Concurrences and dissents often play an important role in shaping the future course of the law. Consider the dissents by Holmes and Harlan in Lochner v. New York, or Justice Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer.
June 18, 2010, 2:57 pmBrett Bellmore says:
Terrible analogy. Terrible, because any private citizen who owned the land, and had money to burn, could build those skyscrapers.
But the legal fate of a private citizen who ‘renourished’ your beach without your permission in Florida would not, I expect, be pleasant… Certainly, doing so wouldn’t result in them owning the beach.
June 18, 2010, 3:27 pmReaderY says:
I don’t often agree with Breyer and Ginsburg, but I do here.
The Court held that the appelant’s basic takings claim — that the Supreme Court of Florida had changed the state’s law of property to their detriment — simply wasn’t true on the (for constitutional purposes) facts. Because owners of submerged land have always had a right to fill in their land if they wish, owners of currently beachfront property have never had a property right to have their land retain its access to the ocean. Since the property-owners never had this right in the first place, no property right was ever taken.
Given this resolution, there was no need for the court to opine on how it might rule if a state court decision might in the future change the law of property to take away a previously established property right.
The Article III cases and controversies clauses prohibits federal courts from offering an advisory opinion on matters on which there is no live controversy.
Given the holding that no taking in fact occurred, the appelants simply had no standing to raise a constitutional takings claim.
The Court should have dismissed the case. There was no live federal controversy. Under Article III, the Court had no jurisdiction to reach any decision other than that it did not have jurisdiction.
June 18, 2010, 5:47 pmMore on Property Rights (Plus Privileges, Immunities, Due Process) | Think Tank West says:
[...] or the other. For more on the case, see the blogposts of Cato adjunct scholars Tim Sandefur, Ilya Somin, and David [...]
June 18, 2010, 6:31 pmAnthony says:
That’s because the private citizen wouldn’t have owned the area he was adding material to. To take a more parallel example: let’s say that, rather than being next to the ocean, you were next to some undeveloped natural area owned by the state and maintained as a nature preserve. This certainly influences your property value. Now, let’s say the state decides that it no longer values that nature preserve, and really needs a dump instead. This would certainly influence property values (and would probably be fought in both political and legal arenas), but it’s not a taking.
June 18, 2010, 6:42 pmDjDiverDan says:
First, it’s not “your” beach – the beach does now, and always has (for at least as long as you’ve owned the beachfront property, and well before that) belong to the State of Florida. That was the legal arrangement when you bought the beachfront property. Second, it’s not just any private person “renourishing” the beach – it’s the State of Florida, the Owner of the beach, doing precisely what any other owner of private property has a right to do, improving its property by filling it, and in the process protecting its own property from the ravages of future hurricanes. The bottom line, the beachfront owners: (a) did not lose a single square foot of land which they owned prior to the renourishment, and (b) did not have a single legally cognizable element of their property rights taken or diminished. Hence, there was no “taking.”
I can’t help but think you are being purposely obtuse – you keep focusing on the physical characteristics of the land (But it’s no longer Oceanfront Property!), rather than the relevant issue of the legal principles governing littoral rights of waterfront property owners. Government can do all sorts of things which drastically alter the physical characteristics of your land – like changing that sleepy country lane at the end of your driveway to a six lane divided limited access highway, where you now pull out of your driveway onto a one-way frontage road – without physically taking any of your land or altering any of your legal rights. And without one or the other – a physical taking or a diminishment of your preexisting legal rights – there is no taking.
June 18, 2010, 6:48 pmGuy says:
Not to mention the dissents in Slaughter-House and Plessy. Even though Slaughter-House was never overruled, the dissent was important in shaping substantive due process.
I think dissents and concurrences add transparency to the process, they are written as part of an internal dialogue in the court, so why not let the public see them? Let the dialogue continue. Besides, there is no majority opinion here, so concurrences are kind of necessary.
June 18, 2010, 7:30 pmJustin says:
Scalia’s Sections II and III are really, really bizarre and cannot be explained without understanding Scalia’s political views. Scalia’s stuck. He’s on the record as saying judges don’t make the law, they find it – even if the law was contrary for 300 years. But he can’t condone the theoretical behavior that a judge’s opinion disrupts well established property rights. Nobody can (9 votes here, push to shove). The obvious constitutional support is SDP. But Scalia doesn’t believe in SDP. Rather than accept what not believing in SDP really means – that serious political harms will often fall on people who lack a statutory remedy, and we just have to hope the political system resolves that (absent constitutionally-protected discrimination)), he basically drafts this bizarre decision which treats the judiciary as just another political body. Let’s be clear – he doesn’t actually believe what he’s writing. He’s just not that dumb. But he’s got to get to a certain result – as he did in Bush v. Gore.
(NOTE: In other arenas, Scalia is JUST FINE with serious political harms happening to people who get “screwed” by the system but have no recourse to a specific statutory remedy. You can see that from his AEDPA jurisprudence, where often nobody but Thomas is willing to follow in his complicit willingness to allow the “machinery of death” to kill innocent people).
June 18, 2010, 8:10 pmBrett Bellmore says:
DJDIVERDAN, here’s a simple rule of thumb: If you have to change the property description in the plat book, it’s a taking.
The state of Florida does NOT own “the beach”, they own from mean high tide out. The property owner owns from the mean high tide, in. The mean high tide is the property line. At least it was, until the government dumped some sand in order to have an excuse to confiscate some beach front they wanted.
An interesting question; “Renourishment” is a temporary fix, the dumped sand goes away in a few years. Suppose the local government stops dumping sand… Do the property owners get their beach back? How was the property description altered? Is the property line now at a fixed location? Or is it a fixed distance from the mean high tide line, with the owners to actually LOSE GROUND as the government’s sand washes away?
June 18, 2010, 9:44 pmGuy says:
Justin, in fairness to Scalia, he thinks it would be Constitutional for Congress to completely repeal the Habeas Corpus Act of 1867, so there’s no inconsistency with regards to AEDPA. You have a good point, though, about whether or not judges “make” law. Ordinarily I would suggest that Scalia thinks that judges shouldn’t make law, but sometimes do anyway, but the problem with that is that it doesn’t square well with his vote in Riley v Kennedy. That inconsistency is especially difficult to understand given that the text of the VRA talks about laws that are “in force or effect”, not laws which are actually valid, which, if anything, would give him more leeway to treat the state court decision as changing the law.
June 19, 2010, 12:42 amWell Water Rights Questioned in Texas :: Chris Grande says:
[...] Volokh – this is equally disturbing as Florida tries to take property rights in a “maneuver.” Categories : Geopolitical/Political [...]
June 19, 2010, 6:11 amDjDiverDan says:
Alright Bret, it’s time for me to ask – DID YOU EVEN READ THE CASE? There was NO change in the property line – the Mean High Water Line was the Beachfront owners’ property line BEFORE the renourishment, and the EXACT SAME LINE (though it was no longer the Mean High Water Line) was the owners’ property line AFTER the renourishment. The beach renourishment had the effect of moving the Mean High Water Line, but the Property Line DID NOT MOVE! If a surveyor had prepared a metes and bounds description of the beachfront owners’ lots both before and after the State’s fill project, those descriptions would be IDENTICAL as to calls and distances.The physical on the ground boundaries DID NOT CHANGE!
As to your second “interesting question”, the answer is really very simple and can be determined from the legal principles governing littoral rights as described in the case. If the State stops dumping sand, and the next few tropical storms and hurricanes wash away enough sand so that the Mean High Water Line moves back inland, to or even past what is now a fixed property line, then the property line will again become the Mean High Water Line, and if that means that the Beachfront Owner loses land area through the natural process of erosion, or even gains it back again through accretion (only if that happens AFTER the Mean High Water Line has come to or past the now fixed property line), the Beachfront property owner is back to the same littoral rights he had before, the right to gain land through accretion (but NOT through avulsion), and the risk of losing land through deliction (i.e., land washed away by natural erosion). And if he wants to minimize or eliminate the posibility of land lost through deliction, he can, at his own cost (and NOT the State’s) build a seawall along but completely inside of his property line.
June 19, 2010, 12:18 pmBrett Bellmore says:
If before hand it was the mean high tide, wherever it happened to move to, and afterwards it’s a fixed line, then it’s NOT “the EXACT SAME LINE”, now, is it?
Specifically, it’s now a line that’s a long ways from the water, which means that the former owners of beachfront property now own inland property. That’s one heck of a big difference, and if they sell the property, it’s going to cost them big time. The government took much of the market value of their property.
I really despise people who make excuses when the government sets out to screw somebody over. The land in question didn’t NEED re-nourishment. They did it solely to take the beach away, more cheaply than if they’d used eminent domain, and had to pay the market rate for it.
But who is surprised when the government’s courts rule for the government? Not me…
June 19, 2010, 2:28 pmMore on Property Rights (Plus Privileges, Immunities, Due Process) | Austrian Economics Blog says:
[...] or the other. For more on the case, see the blogposts of Cato adjunct scholars Tim Sandefur, Ilya Somin, and David [...]
June 20, 2010, 1:08 amLas Vegas Lawyer says:
A proper judgment or right decision over the case should render by the court. Injustice claim to be the reason where in innocent persons are convicted with the crimes which they do not commit at all.
June 20, 2010, 8:24 amDjDiverDan says:
Yes, it is. Let me make this as simple as I can for you (though I have my doubts that it would help in your case).
If, before the renourishment, the ocean front lot’s property line was described as follows:
And AFTER the Renourishment Project the Legal Description was as follows:
Then the line which was formerly on the Mean High Water Line HAS NOT MOVED - it is still the EXACT SAME LINE, and the lot has the EXACT SAME BOUNDARIES, and the EXACT SAME AREA. Hence, NO TAKING. Is it clear yet? or are you just hopelessly opposed to the State of Florida trying to protect its beaches from further erosion?
Note for Perfectionists - the foregoing metes and bounds description is entirely hyopothetical; I made up the street names and the calls and distances. I have not run it through my surveying software to ensure closure or to calculate precise land area.Also, I realize that it is simplistic to assume that a Mean High Water Line runs absolutely straight for 186 feet. It was just much easier to create a very simple 4-sided lot for demonstrative purposes that way.
June 20, 2010, 11:01 amGuy says:
But the Earth is rotating on its axis and about the sun, so it HAS moved.
I don’t understand why there is some platonic ideal of what constitutes a change in property rights, You need to pick one of several competing rules and just stick with it. It’s not like the concept of a “line” is anything more than an abstraction.
June 20, 2010, 4:58 pmGuy says:
There’s nothing to prevent a person from having a property right up to the Mean High Water Line, where ever it may be an any time, and there is nothing to prevent a person from having a property right up to the Mean High Water Line as it was at a particular time. The question is what are these petitioner’s property rights.
June 20, 2010, 5:28 pmDjDiverDan says:
Exactly. And that question is decided by state law – in this case, Florida law, and was determined by the Florida Supreme Court. And what the Supreme Court decided in this case, and quite rightly, in my opinion, is that the Florida Supreme Court did not engage in a “judicial taking” because it did not unexpectedly or suddenly change well-established property law doctrines to reach its decision; rather, it quite properly followed long established (back to pre-Constitutional Common law cases out of England, and doctrines governing littoral rights of waterfront owners set out in Blackstone’s Commentaries) legal doctrines regarding: (a) the distinction between accretion (i.e., a waterfront owner gaining land area as the waterline moves as a result of the natural, long-term build up of sediment, where new land becomes owned by the adjacent land owner) and avulsion (a waterline moving as a result of man-made fill projects, where the recovery of land from the seabed, lakebed or riverbed redounds to the benefit of the owner of the land beneath the water, and not to adjacent land owners); and (b) the rights of the State of Florida, as the owner of the seabed from the Mean High Water Line seaward, to protect its own property by dredging and filling.
June 20, 2010, 8:56 pmGuy says:
DjDiverDan, right, I’m not disagreeing with the result in this case. If anything, I’m alarmed by the fact that some Justices seem to have suggested that they can review the state court to determine whether they correctly determined petitioner’s rights under state law. I’m just saying that if Florida law clearly and unmistakably provided petitioners with a right to property extending to the mean high water line even if the state “renourishes” the beach, then the state’s claim to that land would be a Taking.
June 20, 2010, 9:04 pmshawn-non-anonymous says:
As a Florida resident, I just want to know where I can get beach access if the vast majority of our shoreline is fenced in and privately owned?
A little off topic, but I’d like to see state do some real takings here and open up more beaches to the public.
June 21, 2010, 10:58 amGordo says:
It seems to me that Kennedy’s and Sotomayor’s opinion gets it just about right. There are hypothetical situations where a judicial decision could result in a “taking,” but such hypotheticals are so extreme that they are best found under a violation of due process rather than a property rights taking.
The ironies in the particulars of the case brought before the justices are just too delicious to avoid chuckling over, especially over the chutzpah of these property owners claiming that actions designed to save their properties from an encroaching sea constitute a “taking.” The creativity of these plaintiffs provides a good argument for avoiding “judicial takings” under the Fifth Amendment.
June 21, 2010, 11:35 amAndrew says:
Kennedy’s and Sotomayor’s opinion gets it entirely wrong. The idea that the Takings Clause only applies to the legislative and executive branches is untenable on its face, because the plain text of the clause does not exempt the judiciary.
The way state law works nowadays in most states is that courts are allowed to legislate to their heart’s content, as long as they don’t amend or overturn a statute passed by the legislature. This is called judicial modification of common law. When a state court takes property in a way that would be unconstitutional if done by the state legislature, there is no reason whatsoever to give the courts free rein.
July 10, 2010, 5:35 amIs the Judicial Takings Issue Headed Back to the Supreme Court? | theConstitutional.org says:
[...] three months ago, in the Stop the Beach Renewal case, the Supreme Court split 4–4 over the question of whether a decision by a state court could violate constitutional p…requiring compensation under the Fifth Amendment. Recently, the Montana Supreme Court issued a [...]
September 17, 2010, 5:18 pm