In a 8-0 decision handed down yesterday, the U.S. Supreme Court affirmed a decision by the Florida Supreme Court and rejected a claim by landowners along Florida’s Gulf Coast. The case, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, dealt with the legal question of whether the state of Florida had “taken” private property without just compensation. The Fifth Amendment of the U.S. Constitution provides that the government cannot take private property without “just compensation.”
A Florida law designed to mitigate beach erosion allows the state to rehabilitate beaches by adding sand. The Florida Supreme Court held that the newly created beaches become public property based on Florida law. Under Florida property law, beachfront property owners do not own land that is created as a result of an “avulsion” (a “sudden or perceptible loss of or addition to land.”) The Court affirmed the decision of the Florida Supreme Court, which held that the beach rehabilitation constituted an avulsion and that therefore the property owners did not have title to the new property that was created.
The Court’s decision was a win for Florida environmentalists, and a setback for property rights advocates, but it may not affect the Ohio Supreme Court’s decision Merrill v. State of Ohio. Merrill also involves a question of Ohio property law. Specifically, the Ohio high court will determine the question of how far property rights extend along the Lake Erie shore. Private property advocates argue that the “public trust” land (land that is owned by the state) extends only to the water’s edge, while environmentalists and the Ohio Department of Natural Resources contend that the boundary is the high water mark.
Although the U.S. Supreme Court ruled in favor of environmentalists on a similar question in Stop the Beach Renourishment, Inc. v. Florida, the Merrill case will likely be decided solely by applying Ohio property law.
The U.S. Supreme Court was split, however, on the question of whether a state court decision could constitute an unconstitutional taking of private property. The Court’s four conservative justices—Scalia, Alito, Roberts, and Thomas—agreed that “the Takings Clause bars the State from taking private property without paying for it, no matter which branch is the instrument of the taking.” Meanwhile, Justices Kennedy, Breyer, Ginsburg, and Sotomayor declined to decide whether a judicial decision upholding legislative action could, itself, constitute a taking.
Although a majority of the justices did not accept the “judicial takings” theory in Stop the Beach Renourishment, Inc. v. Florida, the Court left open the possibility that a judicial taking could occur in a future case. Therefore, it appears possible that the property rights advocates in the Merrill case—should they lose—could seek certiorari to the United States Supreme Court under the “judicial takings” theory.