Environmental Protection

CAC Files Brief In Supreme Court “Judicial Takings” Case

Today, in the pending Supreme Court case of Stop the Beach Renourishment v. Florida Department of Environmental Protection (08-1151), Constitutional Accountabilty Center (CAC), along with the State and Local Legal Center, filed an amicus brief in support of the respondent on behalf of state and local government organizations.

Stop the Beach Renourishment is a “judicial takings” case that involves a beach restoration project on Florida’s Gulf Coast. With the rise of sea level as well as hurricanes, beaches around the country are eroding rapidly, and a number of states have invested heavily in programs to maintain their beaches. Under Florida’s program, the state will agree to rebuild a highly eroded beach area and then maintain the beach to a fixed boundary called the erosion control line. As a result, the boundary between the state land and private property changes from the variable mean high tide mark to fixed erosion control line. Landowners challenged this change in property boundaries as a violation of state law in the Florida court system and lost. They sought federal Supreme Court review on the theory that, in denying their state law claims, the Florida Supreme Court so distorted Florida law that its ruling amounted to a “judicial takings,” a species of takings claim that the U.S. Supreme Court has hinted at, but never officially recognized.

As a general matter, there is a kernel of a real issue here. While the Supreme Court lets states determine their own property law, state courts cannot manipulate state law to help the state avoid a federal constitutional violation. However, as we argue in our brief, there is no need to create a novel “judicial takings” doctrine to prevent such manipulation: Supreme Court precedents already provide a well-established and entirely adequate avenue for bringing any valid claim that a state court has interpreted state law to evade federal Takings Clause mandates. Under these existing precedents, the Supreme Court prohibits state courts from evading federal takings constitutional obligations through state law decisions that lack “a fair or substantial basis.” The “fair or substantial” test incorporates the appropriate deference to state courts on matters of state substantive law, but allows the Supreme Court to step in on those rare occasions when it must do so to protect federal constitutional rights. It is thus entirely unnecessary for the Court to fashion a new “judicial takings” doctrine.

Even if the Court were inclined to recognize specific claims of “judicial takings,” Stop the Beach Renourishment is certainly not the case in which to do it. The Florida Supreme Court’s ruling was entirely justified and there isn’t anything close to a taking under the U.S. Constitution on the facts before the Court. The erosion control program provides significant benefits to coastal landowners—providing new protections against storm damage and preserving the property owners’ rights of access, view, and use of the water—and any burdens it imposes are entirely reasonable.

Moreover, even assessing whether a taking requiring compensation occurred in this case would be difficult: there is a complete lack of evidence in the record on the elements of a federal taking claim because the case was litigated below as a state law claim and the property owners never raised a federal constitutional challenge until the case made its way to the U.S. Supreme Court. There has been no record compiled on the property owner, the parcel of property, the value of the property, or any offsetting benefits. There has been no demand for just compensation and Florida has not denied such compensation. The Supreme Court generally does not engage in “fact finding,” so the lack of an evidentiary record is a real logistical problem for proponents of a “judicial takings” inquiry in this case.

For all these reasons, our brief urges the Supreme Court not to create a new doctrine of “judicial takings” — it is unnecessary and impractical, and it would violate bedrock principles of federalism.

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