Robert Percival
On Thursday June 17 the Roberts Court issued its first significant regulatory takings decision. In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Conservation the Roberts Court unanimously upheld beach replenishment programs that have been an expensive, but popular, response to rising sea levels. While rejecting the takings claim presented in the case, the Court’s four most conservative Justices, led by Justice Scalia, endorsed a significant expansion of the takings clause to cover what they called “judicial takings” -- decisions by courts interpreting state property law to the disadvantage of landowners. Justice Scalia’s plurality opinion invites a new round of takings claims that, while unlikely to succeed in court, could affect how property law handles the challenges posed by climate change.
The case involved a challenge to a Florida beach replenishment program by a group of beachfront property owners who claimed that it constituted a taking of their property without payment of just compensation. Under Florida’s Beach and Shore Preservation Act, prior to the state funding a beach replenishment project, an “erosion control line” is set at the mean high water line, the existing boundary between state-owned and private property. The Act provides that any accretions of land seaward of the erosion control line (including those caused by the project pumping additional sand) then belong to the state, but beachfront property owners are guaranteed continued access to the water over the state-owned accretions.
Beach replenishment programs are expensive, but popular with most owners of beachfront land because they prevent erosion of their property, a problem likely to become more urgent as global warming contributes to further sea level rise. Yet a group from Destin, Florida calling themselves Stop the Beach Renourishment, Inc. (“Stop the Beach”) challenged the Florida program. Stop the Beach argued that the program was a taking requiring payment of just compensation under the Fifth Amendment because it deprived beachfront property owners of a common law right to continued contact with the water and the ownership of any future accretions, including the sand the state pumped seaward of their existing property line. After a state district court agreed with Stop the Beach, the Florida Supreme Court reversed. Interpreting state law, the court found that the beach replenishment program did not deprive them of any property rights. The court described the right to accretions as a future contingent interest, not a vested property right, and held that there is no littoral right to contact with the water independent of the littoral right of access, which the Act does not infringe.
Stop the Beach then claimed that the Florida Supreme Court’s decision constituted a “judicial taking” of their property because it “constitutes a sudden change in state law, unpredictable in terms of relevant precedents.” It sought review in the U.S. Supreme Court, which had not previously held that the takings clause could be violated by a judicial decision. The Court surprised most observers last year when it agreed to review the Florida court’s decision. The Roberts Court previously had shown little inclination to pursue expansion of regulatory takings doctrine, a favorite project of Justice Scalia that had faltered in the last years of the Rehnquist Court. Also it was hard to imagine a less sympathetic set of facts for a takings claim than those win Stop the Beach.
In Stop the Beach owners of beachfront property argued that an expensive government program to protect their property by combating shore erosion actually required that they be compensated. Even Justice Scalia expressed skepticism at this claim when the case was argued last December. “I’m not sure it’s a bad deal,” he exclaimed, because “the State has prevented further erosion of [your] land.”
I mean, if I had a place and it's being -- it’s being eroded by hurricanes constantly, you know, I -- I'm not sure whether I wouldn't -- wouldn’t want to have the sand replaced, even at the -- at the cost of having a 60-foot stretch that the State owns.
The Court currently is split 4-1-4 in most cases challenging environmental regulations, with Justice Kennedy as the swing vote and Justice Stevens generally supporting environmental interests. After Justice Stevens, who owns a beachfront condominium in Florida, recused himself from the Stop the Beach case, it was widely assumed that Kennedy’s vote would either produce a 4-4 deadlock or a 5-3 reversal. Had it been the former, the decision below would have been “affirmed by an equally divided Court,” a result likely to be announced shortly after oral argument. When no decision was released for months, some believed that the Roberts Court was about to hand property rights advocates a significant victory by reversing the Florida court. Yet on the merits the Court unanimously rejected Stop the Beach’s takings claim.
All Justices agreed that the Florida Supreme Court had properly interpreted state law in finding that the plaintiffs never had the property rights that they claimed the replenishment program would take from them. Yet the long-standing canon that constitutional issues should be avoided if a case can be decided on statutory grounds did not deter the four conservatives on the Roberts Court (Chief Justice Roberts and Justices Alito, Scalia and Thomas) from endorsing the notion of judicial takings. While conceding that the framers of the Constitution never contemplated judicial takings, Justice Scalia’s plurality opinion for the four maintains that the text of the Takings Clause is not addressed to a specific branch of government. “If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.”
A basic problem with this approach is that it invites federal courts to second guess how state courts interpret their own property law. One could hardly imagine a more intrusive invasion of the very principles of federalism that the Court’s conservatives espouse when trying to limit federal legislative power. Perhaps this is not surprising given that the Rehnquist Court’s expansion of regulatory takings doctrine had often been in tension with the same Court’s expansive interpretation of the Eleventh Amendment to protect states from private claims for damages.
The other four Justices participating in the Stop the Beach case refused to embrace the Scalia plurality’s notion of judicial takings. In separate concurrences by Justice Kennedy and Justice Breyer they argue that it is not necessary to decide whether there can be such a thing as a “judicial taking” in light of the Court’s unanimous rejection of Stop the Beach’s takings claim. Justice Kennedy, joined by Justice Sotomayor, suggests that judicial decisions changing established property rights could be struck down as “arbitrary or irrational” under the Due Process Clause, an approach that Justice Scalia derides as a return to substantive due process. Justice Breyer, joined by Justice Ginsburg, warns that the plurality’s approach threatens federalism by inviting a flood of litigation asking federal courts to second guess state property law decisions.
The Court’s discussion of judicial takings indicates that it is as sharply divided as ever on regulatory takings issues with the Court split 4-4 on whether to endorse the concept of judicial takings. Yet by entertaining Stop the Beach’s challenge, the Court could not avoid deciding whether the Florida Supreme Court’s interpretation of state property law represented a sharp departure from prior precedents. All eight Justices participating in Stop the Beach agree that the Florida court’s decision did not fundamentally alter property rights so they unanimously rejects the takings claim. But with Justice Kennedy’s concurrence in the judgment, joined by Justice Sotomayor, suggesting due process grounds for federal courts to scrutinize state court interpretations of property law, the Stop the Beach decision is an invitation to a new round of takings claims. If the past is any guide, this litigation is less likely to produce decisions actually awarding compensation to property owners than it is to serve as a deterrent to abrupt changes in regulatory policy.
On Thursday June 17 the Roberts Court issued its first significant regulatory takings decision. In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Conservation the Roberts Court unanimously upheld beach replenishment programs that have been an expensive, but popular, response to rising sea levels. While rejecting the takings claim presented in the case, the Court’s four most conservative Justices, led by Justice Scalia, endorsed a significant expansion of the takings clause to cover what they called “judicial takings” -- decisions by courts interpreting state property law to the disadvantage of landowners. Justice Scalia’s plurality opinion invites a new round of takings claims that, while unlikely to succeed in court, could affect how property law handles the challenges posed by climate change.
The case involved a challenge to a Florida beach replenishment program by a group of beachfront property owners who claimed that it constituted a taking of their property without payment of just compensation. Under Florida’s Beach and Shore Preservation Act, prior to the state funding a beach replenishment project, an “erosion control line” is set at the mean high water line, the existing boundary between state-owned and private property. The Act provides that any accretions of land seaward of the erosion control line (including those caused by the project pumping additional sand) then belong to the state, but beachfront property owners are guaranteed continued access to the water over the state-owned accretions.
Beach replenishment programs are expensive, but popular with most owners of beachfront land because they prevent erosion of their property, a problem likely to become more urgent as global warming contributes to further sea level rise. Yet a group from Destin, Florida calling themselves Stop the Beach Renourishment, Inc. (“Stop the Beach”) challenged the Florida program. Stop the Beach argued that the program was a taking requiring payment of just compensation under the Fifth Amendment because it deprived beachfront property owners of a common law right to continued contact with the water and the ownership of any future accretions, including the sand the state pumped seaward of their existing property line. After a state district court agreed with Stop the Beach, the Florida Supreme Court reversed. Interpreting state law, the court found that the beach replenishment program did not deprive them of any property rights. The court described the right to accretions as a future contingent interest, not a vested property right, and held that there is no littoral right to contact with the water independent of the littoral right of access, which the Act does not infringe.
Stop the Beach then claimed that the Florida Supreme Court’s decision constituted a “judicial taking” of their property because it “constitutes a sudden change in state law, unpredictable in terms of relevant precedents.” It sought review in the U.S. Supreme Court, which had not previously held that the takings clause could be violated by a judicial decision. The Court surprised most observers last year when it agreed to review the Florida court’s decision. The Roberts Court previously had shown little inclination to pursue expansion of regulatory takings doctrine, a favorite project of Justice Scalia that had faltered in the last years of the Rehnquist Court. Also it was hard to imagine a less sympathetic set of facts for a takings claim than those win Stop the Beach.
In Stop the Beach owners of beachfront property argued that an expensive government program to protect their property by combating shore erosion actually required that they be compensated. Even Justice Scalia expressed skepticism at this claim when the case was argued last December. “I’m not sure it’s a bad deal,” he exclaimed, because “the State has prevented further erosion of [your] land.”
I mean, if I had a place and it's being -- it’s being eroded by hurricanes constantly, you know, I -- I'm not sure whether I wouldn't -- wouldn’t want to have the sand replaced, even at the -- at the cost of having a 60-foot stretch that the State owns.
The Court currently is split 4-1-4 in most cases challenging environmental regulations, with Justice Kennedy as the swing vote and Justice Stevens generally supporting environmental interests. After Justice Stevens, who owns a beachfront condominium in Florida, recused himself from the Stop the Beach case, it was widely assumed that Kennedy’s vote would either produce a 4-4 deadlock or a 5-3 reversal. Had it been the former, the decision below would have been “affirmed by an equally divided Court,” a result likely to be announced shortly after oral argument. When no decision was released for months, some believed that the Roberts Court was about to hand property rights advocates a significant victory by reversing the Florida court. Yet on the merits the Court unanimously rejected Stop the Beach’s takings claim.
All Justices agreed that the Florida Supreme Court had properly interpreted state law in finding that the plaintiffs never had the property rights that they claimed the replenishment program would take from them. Yet the long-standing canon that constitutional issues should be avoided if a case can be decided on statutory grounds did not deter the four conservatives on the Roberts Court (Chief Justice Roberts and Justices Alito, Scalia and Thomas) from endorsing the notion of judicial takings. While conceding that the framers of the Constitution never contemplated judicial takings, Justice Scalia’s plurality opinion for the four maintains that the text of the Takings Clause is not addressed to a specific branch of government. “If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.”
A basic problem with this approach is that it invites federal courts to second guess how state courts interpret their own property law. One could hardly imagine a more intrusive invasion of the very principles of federalism that the Court’s conservatives espouse when trying to limit federal legislative power. Perhaps this is not surprising given that the Rehnquist Court’s expansion of regulatory takings doctrine had often been in tension with the same Court’s expansive interpretation of the Eleventh Amendment to protect states from private claims for damages.
The other four Justices participating in the Stop the Beach case refused to embrace the Scalia plurality’s notion of judicial takings. In separate concurrences by Justice Kennedy and Justice Breyer they argue that it is not necessary to decide whether there can be such a thing as a “judicial taking” in light of the Court’s unanimous rejection of Stop the Beach’s takings claim. Justice Kennedy, joined by Justice Sotomayor, suggests that judicial decisions changing established property rights could be struck down as “arbitrary or irrational” under the Due Process Clause, an approach that Justice Scalia derides as a return to substantive due process. Justice Breyer, joined by Justice Ginsburg, warns that the plurality’s approach threatens federalism by inviting a flood of litigation asking federal courts to second guess state property law decisions.
The Court’s discussion of judicial takings indicates that it is as sharply divided as ever on regulatory takings issues with the Court split 4-4 on whether to endorse the concept of judicial takings. Yet by entertaining Stop the Beach’s challenge, the Court could not avoid deciding whether the Florida Supreme Court’s interpretation of state property law represented a sharp departure from prior precedents. All eight Justices participating in Stop the Beach agree that the Florida court’s decision did not fundamentally alter property rights so they unanimously rejects the takings claim. But with Justice Kennedy’s concurrence in the judgment, joined by Justice Sotomayor, suggesting due process grounds for federal courts to scrutinize state court interpretations of property law, the Stop the Beach decision is an invitation to a new round of takings claims. If the past is any guide, this litigation is less likely to produce decisions actually awarding compensation to property owners than it is to serve as a deterrent to abrupt changes in regulatory policy.
