Q and A on Stop The Beach Renourishment v. Florida Department of Environmental Protection Oral Argument with Ilya Somin

Can you briefly review how this case got to the Court?
Beachfront property owners in Florida enjoy common law property rights over land up to the "mean high water line", which occasionally shifts as a result of natural phenomena, including storms. The Florida Supreme Court ruled that Florida law denies such rights to owners whose property abuts state "beach renourishment" projects. The owners argue that this creates a "judicial taking" and seek compensation under the Fifth Amendment. The federal Supreme Court has never previously decided the issue of whether a state court judicial decision can be considered a taking.

The main issues?
  1. Can a state court decision that reinterprets state property law amount to a "judicial taking" requiring compensation under the Takings Clause of the Fifth Amendment?
  2. Does the Florida Beach Renourishment Act's stipulation that the state takes title over all land seaward of the pre-renourishment project "mean high water line" deprive landowners of property without due process of law, in violation of the Fourteenth Amendment?
How did the oral argument go? Which if any side do you think should have come out feeling good about their hour in Court?
The oral argument shows that most, if not all, of the justices agree that judicial takings do exist and require compensation under the Takings Clause. On the other hand, there doesn’t seem to be a majority in favor of the position that a judicial taking occurred in this instance. The three most liberal justices have consistently voted against nearly all efforts to expand protection for constitutional property rights, and they are unlikely to do so here; the same is true of Justice John Paul Stevens, who recused himself in this case because he owns waterfront property in Florida that may be affected by the result. The four most conservative justices are much more likely to vote for the property owners, but one of them (Justice Scalia) expressed some doubts about the procedural aspects of their case.

Justice Kennedy is the key swing voter who the property owners must get to win. But he stated in oral argument that the property owners are relying on some disputable Florida precedents, which is a sign that he may not believe that Florida common law was clear enough to rule that the petitioners had a preexisting property right that the state disturbed. Thus, it seems unlikely that the property owners will do better than a 4-4 split, which would uphold the lower court decision against them.

What do you think the Court saw as the strongest argument?

There seems to be broad agreement that judicial takings do exist. At the very least, neither the justices nor—more surprisingly—the government litigants disputed that view. Establishing the existence of judicial takings is not enough for the property owners to win the case; they must also show that one occurred in this instance. But it could potentially be an important victory for property rights generally, even if it doesn’t help the present litigants.

Which argument seemed to get the least traction with the justices?

There did not seem to be much interest in the property owners' Due Process Clause arguments.

Were there any questions or discussions that surprised you?

I was a little surprised that several of the justices asked about the extent to which the landowners benefited from the beach renourishment project. Even if there were substantial benefits, they have no bearing on the issue of whether a taking occurred or not. Any such benefits would only be relevant to the question of how much compensation the owners would be entitled to if a taking did occur. Similarly, if the government took part of a privately owned tract to build a road, it could not argue that no taking had occurred because the owner might benefit from the increased traffic in the area.

What was the media coverage of the argument like? If there was any, do you think it was a fair representation?

I have not carefully followed all the media coverage. I do know that there were stories in several major papers, including the Washington Post and Wall Street Journal. From what I have seen, it was mostly fair. However, I think some papers mischaracterized the owners’ claim as arguing that the government had no power to engage in beach renourishment. In reality, the owners were merely arguing that the government was required to compensate them for the loss of private property rights that occurred as a result of the project. This would not prevent the projects from going forward. Indeed, requiring compensation might actually improve the quality of renourishment projects, since it would give the government an incentive to adopt only those plans whose benefits outweigh the costs inflicted on property owners.

Any guesses on how the case will be resolved? Did any of the justices show their hand?

For reasons discussed above, I think the Court is likely to rule that judicial takings do exist, but that no such taking had occurred in this case because the previous Florida case law wasn't clear enough. Professor Ben Barros of Propertyprof Blog made a similar prediction.

The really important issue to watch is what standard the Court will adopt for determining whether a judicial taking has occurred. That standard is likely to be applied in many future cases that come before federal and state courts.

Cato Institute legal analyst Ilya Shapiro (no relation) may be right in predicting a 4-4 tie, which will result in a win for the government, possibly one without any binding opinion.

Professor Somin’s PREVIEW on Stop the Beach Renourishment v. FL Dept. of Envt’l Protection is available for download.