Constitutional Problems with Judicial Takings Doctrine and the Supreme Court's Decision in Stop the Beach Renourishment

Abstract

I. INTRODUCTION II. CONSTITUTIONAL PROBLEM NUMBER 1: CONSTITUTIONAL HISTORY DOES NOT SUPPORT A JUDICIAL TAKINGS THEORY III. CONSTITUTIONAL PROBLEM NUMBER 2: A JUDICIAL TAKINGS THEORY WOULD VIOLATE PRINCIPLES OF FEDERALISM AND COMMON LAW IV. CONSTITUTIONAL PROBLEM NUMBER 3: THE TEXT OF THE CONSTITUTION ALREADY PROVIDES PROTECTION THROUGH THE DUE PROCESS CLAUSE, RENDERING A JUDICIAL TAKINGS THEORY SUPERFLUOUS V. CONCLUSION I. INTRODUCTION Supreme Court's 2009 term featured a slate of blockbuster cases: for example, the second, special-session re-argument of Citizens United v. FEC, (1) review of the criminal conviction of former Enron CEO Ken Skilling in Skilling v. United States, (2) and the question in McDonald v. City of Chicago (3) of whether an individual right to have a gun for self-defense is constitutionally protected against state infringement. Another potential blockbuster was the first takings case to be heard since Chief Justice John Roberts and Justices Samuel Alito and Sonia Sotomayor joined the Court: Stop the Beach Renourishment v. Florida Department of Environmental Protection. (4) Closely watched by property-rights activists, environmental advocates, and state and local governments, (5) Stop the Beach presented the Court with the opportunity to recognize for the first time a doctrine of judicial0 takings, (6) which would have the potential to significantly limit state courts' ability to reform state property law and, in this case, to seriously hinder state and local efforts to protect coastal areas and respond to environmental disasters. Stop the Beach Renourishment involved a restoration project on Florida's Gulf Coast. (7) Due to sea level rise and increased hurricane activity, beaches around the country are eroding rapidly, and a number of states have invested heavily in programs to maintain their beaches. In particular, Florida's shorelines have been repeatedly damaged by hurricanes and erosion. (8) Beach and Shore Preservation Act of 1965 (9) was enacted to protect Florida's citizens and environment, in light of the legislature's view that beach erosion is a serious menace to the economy and general welfare of the people of this state and has advanced to emergency proportions. (10) Act provides for restoration and nourishment projects to shore up beaches threatened by erosion along the state's 825 miles of sandy beaches. (11) In other words, when local governments like Florida's City of Destin and Walton County apply for the necessary permits under the Act, the state will dredge sand from one area and dump it on another, expanding the width of the threatened beach. In most coastal states like Florida where ownership of beachfront property is split between the state and private parties, the traditional rule of beachfront property ownership, stated simply, is that private landowners own the dry land and the state owns the seabed. (12) The dividing line is the mean high water line (MHWL), a dynamic boundary that fluctuates as the grows or erodes. (13) Traditionally, the state owns everything seaward of the (14) Florida law, like most states, differentiates between gradual and sudden changes in the coastline. (15) Gradual additions to the shoreline are accretions; gradual subtractions are erosion. (16) Under the common law, a beachfront property owner bears both the benefit and burden of these changes: accretion increases the property owners' land, but erosion will reduce it. (17) Sudden, perceptible changes in the shoreline--as opposed to gradual accretion or erosion--are called avulsions. (18) While a sudden change to the shoreline would obviously change the MHWL, under the common law of avulsion in Florida, the legal boundary remained the pre-avulsion MHWL. (19) Beach and Shore Preservation Act shifts the line between public and private property, modifying the common law of beachfront property ownership. …