Government entities can’t take private property for public uses without compensating owners for the value they have lost.  That is one statement, and probably one of the few today, that would not unleash a fierce partisan debate.  Although the courts continue to grapple with some of the details – most recently, how to define the “public purposes” or “public uses” for which takings are justified – the basic property rights principle, embedded in the Constitution, is unchallenged:  Property owners must be compensated if their property is taken by local, state, or federal legislators or administrative agencies.  But what about the courts?  Is it possible for a judicial decision to have the effect of “taking” private property without compensation?

A group of Florida property owners have raised that question and are hoping the U.S. Supreme Court will answer it.  But before considering the judicial taking question – if they consider it at all – the justices will have to address the threshold issue in Save our Beaches, Inc. v. Florida Department of Environmental Protection: Whether a Florida statute authorizing the restoration of damaged beachfront violates the state’s constitution.   

A brief primer on waterfront property rights will help explain the legal questions driving this dispute.  Under Florida’s common law, owners of beachfront property mark their boundary at the “mean high water line” (MHWL).  The state owns everything seaward of that line in trust, retaining for the public the right to access the water for fishing and navigation purposes.  (Massachusetts law is different; here, a littoral property owner’s title extends, in most circumstances, to the mean low water mark, though the land between mean high and mean low is still subject to a public right to fish, fowl and navigate.)  

Setting the Line

As normal weather patterns and the passage of time alter the contours of the beach, the MHWL shifts as well.  If the beachfront increases gradually (the legal term is “accretion”) the new sand belongs to the owner.  However, if a major event – a hurricane or an earthquake – alters the beach (the legal term is “avulsion”), the MHWL remains fixed.  If the beachfront is eroded, the owner can continue to claim the property that is now under water; but if sand is added, under Florida’s common law, the area that is now seaward of the old high water line belongs to the state, and that is the legal hook on which the Florida dispute hangs.

Implementing the beach restoration program, which has been in place for more than a decade, the state Department of Environmental Protection (DEP) brought in new sand to replace a long section of beachfront that hurricane damage had washed away.  Also in accordance with the state law, the DEP established a permanent “Erosion Control Line” at the old MHWL.  This had the effect of creating a new strip of beach owned by the state that sits between the owners’ now fixed property lines and the water. 

Owners of 5 of the 448 parcels affected sued, claiming that severing their property’s contact with the water and giving the state control over a portion of the beachfront had reduced the value of their property, resulting in a “taking” of their land for which they should have been compensated.

The state Appeals Court agreed that the application of the beach restoration program constituted an unconstitutional taking under Florida’s common law, but the state Supreme Court overturned that decision.  In the opinion of the state’s  high court, the Appeals Court erred by failing to treat the beach restoration as an “avulsion” that though man-made rather than natural, fixed the old high water line and allowed the state to claim the new beachfront seaward of it. 

“Looks Constitutional to Us”

“In the context of restoring storm-ravaged public lands, the state would not be doing anything under the act that it would not be entitled to accomplish under Florida’s common law,” the majority wrote, finding the statute, based on that analysis, to be “facially” constitutional.

Central to the property owners’ argument was the assertion that severing the contact between their land and the water had violated the owners’ “littoral” rights – the special rights benefiting property abutting waterways.  The Appeals Court found this argument to be sound.  The state Supreme Court, on the other hand, danced around it by defining water contact as “ancillary” to littoral rights, but not integral to them.   Florida law recognizes no “independent right of contact with the water,” the majority asserted.   There being “no right to maintain a constant boundary with the water’s edge,” they concluded, the Florida statute is constitutional, because “it does not unconstitutionally eliminate the ancillary right of access.”  

If this reasoning strikes you as somewhat porous and more than a little tortured, you aren’t alone.  The justices themselves seemingly acknowledged the weakness by assuring anyone who might be concerned that they do not intend to apply their analysis beyond this case.   The decision, they said, “is strictly limited to the context of restoring critically eroded beaches under the Beach and Shore Preservation Act.” 

A Scathing Dissent

That assurance didn’t satisfy the two justices who dissented from the majority opinion, one of whom accused the majority of “butchering” Florida common law in order to find a basis for upholding a popular environmental program.  In a blistering opinion, Justice R. Fred Lewis said the majority opinion was based on “infirm, tortured logic and a rescission from existing precedent, under the hollow claim that existing law does not apply or is irrelevant here.”   

What is at issue here, Lewis wrote, is much more than just “a few yards of sand.”  It is the precedent the majority has established, which the state could use, he said, to “create extended state-owned or sovereign lands between the once-private riparian or littoral property and the water, thereby effectively severing property from the sea, lakes and rivers, which instantly converts ocean-front, gulf-front, lake-front and river-front property into something far less.”

Beyond the Threshold Question

The threshold question now before the U.S. Supreme Court – whether the Florida statute is constitutional – has only academic interest in Massachusetts.  As noted earlier, under the common law here, beachfront property owners own everything seaward of the Mean High Water Line, wherever it is set, out to the mean low water mark in most circumstances.  The concept that a “steam shovel” avulsion (sand that is deposited intentionally) could effectively eliminate a littoral boundary has also been rejected.  So even if the state were to adopt a beachfront restoration program like Florida’s, the property owners’ concern about a strip of state-owned beach separating their land from the water wouldn’t likely arise.

Of considerably more interest here and elsewhere is the core question the Florida plaintiffs want the Supreme Court to address:  Whether the decision of the Florida Supreme Court itself amounted to an unconstitutional taking of their property.   That’s a question the Supreme Court has not previously addressed and may not consider here.  The court could simply decide that the Florida law is constitutional and leave it at that.  But if the court decides that a judicial taking is possible and defines what it would entail, the decision could add a new and potentially significant twist to the eminent domain debate, with implications nationwide. 

A few justices have hinted in the past at the path the court might follow if it ventures into this currently uncharted legal territory. More than 40 years ago, Justice Potter Stewart suggested that a judicial taking might occur if a state court decision effected “a sudden change in state law, unpredictable in terms of the relevant precedents.”  Former Justice Sandra Day O’Connor and Justice Antonin Scalia took a more recent stab at the question in a 1994 decision, in which they suggested that a judicial taking question might be triggered if a state court decision impaired the rights of property owners “by invoking nonexistent rules of state substantive law.”  

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