Comment : PERC - The Property and Environment Research Center

PERC Reports: Volume 27,
No.3, Fall 2009

On the Lookout

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A chance to close the judicial takings loophole

By Reed Watson

This fall, the U.S. Supreme Court will hear Stop the Beach Renourishment v. Florida Department of Environmental Protection, a case that raises the question of when, if ever, a judicial decision constitutes a taking of private property. By ruling that state courts must answer to the Takings Clause, the Supreme Court can protect private property rights from what has become an end run around the United States Constitution.

At issue in Stop the Beach Renourishment is a government plan to create a state-owned public beach, 60 to 120 feet wide, between private waterfront properties and the Gulf of Mexico. The plan replaces the mean high water line (MHWL), a mark that moves over time as the shore line recedes and advances, with a fixed erosion control line (ECL) as the boundary between private and public property. In so doing, the renourishment plan deprives beachfront property owners of the right to land surrendered by the ocean—a right clearly established under settled principles of Florida property law.

But in order to uphold the renourishment plan and creation of the public beach, the Florida Supreme Court abandoned the decades-old property laws establishing private property rights to land deposited by the ocean. This abrupt reversal of the law, the landowners argue, constitutes an uncompensated taking of private property in violation of the Fifth and Fourteenth Amendments. As such, the importance of this case extends beyond the littoral rights of Florida landowners and hits at what some legal scholars consider a loophole in the constitutional protection of private property rights: judicial takings.

The judicial takings issue comes up when a state legislature passes a law that appears to take private property rights and, when ruling on a takings challenge to that statute, a state court rules that the claimed property right never existed, thus rejecting the takings challenge on the basis that there is nothing to take. Because individual states define what does and does not qualify as property in that state, the U.S. Supreme Court has been unwilling to intervene and insert itself as the final arbiter of a state law issue.

Several Supreme Court justices have hinted, however, that a state court opinion clearly inconsistent with state law precedent would violate a property owner’s federal constitutional rights. In a concurring opinion, Justice Stewart noted in Hughes v. Washington (1967) that “a State cannot be permitted to defeat the constitutional prohibition against taking property without due process of law by the simple device of asserting retroactively that the property it has taken never existed at all.” Similarly, dissenting in Stevens v. City of Canon Beach (1994), Justice Scalia argued that “No more by judicial decree than by legislative fiat may a State transform private property into public property without compensation.”

According to D. Kent Safriet, attorney for the beachfront property owners, Stop the Beach Renourishment presents the Supreme Court with an opportunity to restrain activist state courts from invoking “nonexistent rules of state substantive law to avoid takings claims by declaring no property rights ever existed.” By doing so, the Court can take an important step toward bolstering the constitutional protection of private property rights.

Reed Watson is a research fellow and Coordinator of Applied Programs at PERC.
Reed can be reached at reed@perc.org.

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Comments

Sonya Porretto - 1 October 2009 14:21

Private Property Beach Takings

It's imperative the US Supreme Court is made aware of the tactics State Governments use when applying for Beach Renourishment Projects Federal & Local Funds. In our case,(Porretto Beach) the attorney(s) did more than just represent us they listened and used all of the facts at hand believing in the cause and constitutional rights. The Judge took personal blasts in the press from the Texas Land Commissioner attempting to use bully tactics towards her decision. Sounding like a kindergartener as if she chose the wrong side; the side that provided the courts with all of the facts and nothing to hide, she took a stand and made a decision based facts not fear and stood firm on the oath she carries as a Judge. Although, the State of Texas General Land Office obviously refuses to be accountable or cease the litigation after the judgement was ruled in our favor despite the fact it has no adverse affects on the State's Open Beaches Act they contend it does. It's unknown whether the State General Land Office is trying to cover up the fact erroneous and biased data paid for by the State of Texas and used in the obtaining of millions of dollars from the Federal Government/Tax payers repeatedly since 1994 which not all allocated for renourishment or if they're arrogance is to refuse to be accountble for their actions against a property owner whose property on the beach is and has been a family business operating for over 50 years providing the public a recreational area (what the State wants to take away form the owner and provide it themselves). The other reason could be the State just does not want to give up our areas of the beaches they included in their reports and receive monies for. By doing so, would eliminate their mis use if any, of these funds that the property owner has never seen. The last and final issue is each State may have different policy. When the State of Texas claims land that was renourished though not submerged they use this land for their own monetary gain. It's more than a violation of constitutional rights, it's wrong! In addition, the property is not eroding; it's grossly accreting yet, these facts were excluded in their reports to obtian funds along with the fact, the property was used free of charge (with permission of the owners) as a borrow site for 'free' sand for multiple other renourishment projects on different beaches in the area. So, when the Supreme Court hears this issue they should be careful enough to decide very diligently and not in a blanket type policy, law or opinion. There are unique cases. In the Porretto Beach case(Henry P. Porretto, Jr.) the State of Texas VIA legislature approved an ACT/GRANT whereby, they relinquished all rights and claims to the land called Porretto Beach; the State Open Beaches Act is expo-facto therefore, the State should not have the right to take it back for the same uses it's been and is currently being used for. I would hope after losing my father over this issue and the injustices that transpired for over 14 years that the US Supreme Court will hold these governing entities crookedness accountable because I see no difference between Enron and the State of Texas General Land Office Renourishment projects; these funds should be used on what they were meant for. What about the funds for children's education becuase nobody is keeping the public from using the beach they're welcoming the public !!!!

A chance to close the judicial takings loophole

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