Posted by: Patricia Salkin | June 23, 2010

May a Court’s Decision Effectuate a Taking, Implicating the Fifth and Fourteenth Amendments? While No Supreme Court Majority, Signs Point to Yes.

The Supreme Court on Thursday, June 17, 2010 decided an “almost” landmark case involving property rights in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection et al., 560 U.S. ___ (2010).  The main issues before the Court were (1) whether there is such a thing as a “judicial taking” when a state court declares established property rights to be nonexistent, thus implicating the Fifth and Fourteenth Amendments; (2) what the constitutional test should be if there is in fact a “judicial taking”; and (3) whether the Florida Supreme Court effected such a taking with respect to the facts in issue.  While a plurality held that the judicial branch may violate the Fifth and Fourteenth Amendments when it “takes” property without just compensation—the same as the other branches may—this view fell short of a majority.  The Court, however, unanimously held that the Florida Supreme Court did not take Petitioner’s members’ property without just compensation (Justice Stevens recused himself from deciding the case, quite understandably, given his ownership of a Florida beachfront condo).    

  1. Legal Background and Relevant Facts of the Case 

In Florida, with respect to littoral property owners, the State owns the land permanently submerged under water as well as the foreshore, which consists of the land between the low-tide line and the mean high-water line (this is generally the part of the beach that gets wet during the day as the tide rises and recedes).  At common law, the littoral property owners own up to the mean high-water line.  Also, littoral owners have “special rights” with regard to the water and the foreshore, “which Florida considers to be property, generally akin to easements.”  These “special rights” include:  (1) the right of access to the water; (2) the right to use the water for certain purposes; (3) the right to an unobstructed view of the water; and (4) the right to receive “accretions” and “relictions” to the littoral property. 

“Accretions are additions of alluvion (sand, sediment, or other deposits) to waterfront land; relictions are lands once covered by water that become dry when the water recedes.”  The littoral property owner receives these accretions and relictions.  However, accretions and relictions must occur gradually and imperceptibly over time.  A sudden change (through a hurricane or even an artificial event) is an avulsion and the property boundary remains the same as it was prior to the avulsion (at the mean high-water line before the avulsive event). 

In 1961 the Florida Legislature passed the “Beach and Shore Preservation Act” which established procedures for restoration and renourishment of beaches.  A municipality may apply to the State for funding and permits to restore an eroded beach.  The Act provides that once a project is undertaken, an erosion-control line is established, usually at the current mean high-water line.  Generally, the beach renourishment consists of dumping sand on the previously eroded portion of the land (seaward of the erosion-control line).  As a consequence of the renourishment under the Act, the erosion-control line replaces the mean high-water line as the boundary between the littoral property and state-controlled land.  The establishment of the erosion-control line in effect extinguishes the littoral right of property to accretions and relictions.  However, littoral property owners continue to enjoy the other common-law “special rights” as described above. 

In 2003, two counties applied for the funding and permits necessary to restore beaches, affecting the Petitioner.  Petitioner is a nonprofit corporation whose members are Florida beachfront property owners whose property eroded due to several hurricanes.  The Florida District Court of Appeal held that the Act eliminated two of the Petitioner’s members’ littoral rights, namely the right to receive accretions and relictions and the right to have their property come into contact with the water.  It was found that the Act resulted in an unconstitutional taking.  Upon a certified question, the Florida Supreme Court held otherwise:  (1) finding that the Court of Appeal failed to consider the doctrine of avulsion; (2) describing the right to accretions and relictions as a “future contingent interest” and not a vested property right; and (3) holding that there is no littoral right to contact with the water, other than the right of access (with which the Act does not infringe). 

Petitioner challenges the Florida Supreme Court’s decision declaring these supposed littoral property rights nonexistent as a “taking” requiring just compensation.  

  1. The Plurality Opinion 

In an opinion by Justice Scalia, the plurality addressed the threshold question of whether a judicial determination could effectuate a taking.  

The Takings Clause (unlike, for instance, the Ex Post Facto Clauses, see Art. I, §9, cl. 3; §10, cl. 1) is not addressed to the action of a specific branch or branches.  It is concerned simply with the act, and not with the governmental actor (“nor shall private property be taken” (emphasis added)). There is no textual justification for saying that the existence or the scope of a State’s power to expropriate private property without just compensation varies according to the branch of government effecting the expropriation.  Nor does common sense recommend such a principle.  It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat.   

            Thereafter, Justice Scalia cites to previous Supreme Court precedent suggesting that this view is appropriate.  The opinion refers to the decisions in PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980) and Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (1980), both of which evaluated judicial determinations under the standard Takings analysis.  The key in all of this is that the Fifth Amendment prevents “the State” from taking private property without just compensation, regardless of whether or not it is executive, legislative, or judicial action. 

After finding that the judiciary may effectuate a “taking”, the plurality laid out the test for determining whether, in fact, a judicial taking had occurred.  “If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.”  (emphasis added).   

            Perhaps the most interesting part of the opinion is Justice Scalia’s frontal assault on Justice Breyer’s and Justice Kennedy’s concurring opinions.  Justice Breyer asserted that it was not necessary to decide whether the judicial branch may effectuate a taking in this case.  He also frowned upon creating a standard for evaluating such a taking where, as here, there was no taking.  Scalia argued: 

[T]his is surely incompatible with Justice Breyer’s conclusion that the “Florida Supreme Court’s decision in this case did not amount to a ‘judicial taking.’”  One cannot know whether a takings claim is invalid without knowing what standard it has failed to meet.  Which means that Justice Breyer must either (a) grapple with the artificial question of what would constitute a judicial taking if there were such a thing as a judicial taking (reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?), or (b) answer in the negative what he considers to be the “unnecessary” constitutional question whether there is such a thing as a judicial taking.    

            The opinion went on to show (through several case citations) that the Supreme Court has frequently established a constitutional right and has determined and explained the standard upon which that right is evaluated, only to decide that the right in question was not violated under the applicable facts in that particular case.  “In sum, Justice Breyer cannot decide that petitioner’s claim fails without first deciding what a valid claim would consist of.” 

            Justice Scalia similarly targets Justice Kennedy’s argument that a Takings Clause analysis isn’t warranted due to the protections of “substantive due process” under the Fourteenth Amendment.  Precedent has long held that where a right could come within the rubric of either the nebulous “substantive due process” protections or a specific enumerated provision guaranteeing the right, the analysis should come under the specific provision, here the Takings Clause of the Fifth Amendment. 

            The Court, in any event, unanimously held that no private property right was contravened as no established property rights under Florida law were implicated.  Petitioner argues that there are two established property rights that were taken when the Florida Supreme Court declared their nonexistence.  They are (1) the right to accretions and relictions; and (2) the right to have the littoral property come in contact with the water.  The Court found that the burden rested on Petitioner to prove that these rights existed before the Florida Supreme Court’s decisions.  Such a showing was not made.  (1) Florida’s reconstruction of the beach was an avulsion (albeit an artifical one), thus severing the littoral property boundary from the water.  Once there is an avulsion, the littoral rights to accretions and relictions are extinguished.  “The right to accretions was subordinate to the State’s right to fill.”  (2) In addition, the Florida Supreme Court properly held that there was no established property right of the littoral owner to have the property contact the water independent of the right of access (which was not infringed here).  As there was no established property right, there was no taking.        

  1. Concurring Opinions

It is Justice Breyer’s concurrence (joined by Justice Ginsburg) that leads one to believe that the door is still open to the possibility that a majority of the Supreme Court could determine that a judicial decision must be subject to a Fifth Amendment Takings analysis (where, of course, an established property right is implicated).  He stated that “the plurality unnecessarily addresses questions of constitutional law that are better left for another day.”  (emphasis added). 

I do not claim that all of these conclusions [of the plurality opinion] are unsound.  I do not know.  But I do know that, if we were to express our views on these questions, we would invite a host of federal takings claims without the mature consideration of potential procedural or substantive legal principles that might limit federal interference in matters that are primarily the subject of state law.   

            Justice Kennedy’s concurrence (joined by Justice Sotomayor) implies that similar protections are already afforded to property owners through the Due Process Clause of the Fourteenth Amendment.  “If a judicial decision, as opposed to an act of the executive or the legislature, eliminates an established property right, the judgment could be set aside as a deprivation of property without due process of law.  The Due Process Clause, in both its substantive and procedural aspects, is a central limitation upon the exercise of judicial power.” 

Implications for the Future

That the Court today fails to garner a majority to affirmatively recognize a “judicial taking” does not foreclose the possibility that the plurality opinion will result in new jurisprudence under the Takings Clause.  Justice Breyer indicates that this issue will again be revisited, supposedly under the right set of facts.  And Justice Kennedy states that where a court eliminates an established property right, the Due Process Clause is violated.  In any event, it is worth making the constitutional argument that where a court declares an “established property right” to be nonexistent, a “taking” (or violation of the Due Process) has occurred.       

Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection et al., can be found at:

Special thanks to Charles Malcomb, Esq. at Hodgson Russ LLP in Buffalo, New York for providing this abstract.


  1. I am a layman so my understanding of legal procedures is limited.

    What I don’t understand is if a State Court can be the cause of regulatory takings as stated by Scalia: “The Takings Clause [in the Constitution]… is not addressed to the action of a specific branch or branches. It is concerned simply with the act and not with the governmental actor”. Then how can a property owner after a State Court decision be precluded from summiting their case to Federal Court?

    Doesn’t the Save the Beach decision open up a new can of worms? A self created problem since constitutional issues should always have had access to Federal Courts.

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