Indian Shores Mayor Jim Lawrence said the obvious upon hearing of the U.S. Supreme Court's ruling Thursday affirming public access to beaches Florida had renourished: "This is a big day for beaches." The court's 8-0 ruling siding with the government over beachfront property owners in the Panhandle probably saved the state's long-standing program that restores beaches and protects the shoreline from severe erosion. The property owners wanted compensation after a renourishment project meant their property line no longer touched the water. In the end, none of the justices thought the property owners had a case. It was the right call and a big relief to the state's $65 billion tourism industry.
But another element of the court's ruling was not so comforting. The court's four conservative justices sought to open the door to a new area of private property rights by establishing that judges can violate the Constitution's Takings Clause just as the executive and legislative branches can now. Lacking a fifth vote, the notion failed. But it is a reminder that national elections matter.
The case stemmed from a 2003 decision by Walton County and the city of Destin to widen 6.9 miles of storm-eroded beach by 75 feet. The beachfront owners who lost their exclusive use of the beach claimed a "taking" under the Constitution.
Typically when dealing with beachfront property, the state owns the submerged land and the private holder owns what is upland, a line that subtly shifts as the beach erodes or is naturally added to. But under state law, when Florida undertakes a renourishment project, the beachfront owner's property line is fixed at its current spot. Any sand that expands the beach on formerly submerged land becomes public property.
The key to the government's victory is that Florida law has always granted ownership of new portions of a beach that suddenly expanded (such as after a storm) to the state, the result being that beachfront owners' property no longer touches the water. The court analogized this to when the state renourishes and expands a beach — a sudden event, with the new portion of beach owned by the state.
That was the uncontentious part of the ruling, even as it was hugely consequential for Florida's ability to protect beaches and coastal communities. But Justice Antonin Scalia, who wrote the court's opinion, used the rest of the opinion to attack the more liberal members of the court as well as Justice Anthony Kennedy for refusing to join him and three other justices in adopting a new judicial doctrine.
Scalia wanted the court to recognize that when a state court judge rules in a property dispute in a way that confiscates one party's property, a federal court may find a "judicial taking" that would subject state courts to claims from property owners. Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas joined Scalia in seeking this expansion of property rights.
But Justice Stephen Breyer called for a more cautious approach, saying there was no need to address the issue of judicial takings in this case. He worried that to do so would invite a host of new challenges involving issues of property law that state courts are well familiar with but federal judges are not.
Scalia's effort ignores the traditional way the Supreme Court considers new doctrine, which is to allow it to percolate in the lower courts before weighing in. Moreover, making parochial property disputes into federal cases would be a disaster, clogging the federal courts and slowing the finality of property cases. Thursday was a good day for Florida's beaches but it was a close call for the legal system.