November 03, 2011 Articles

Justice Scalia Uses "Foreign Sources" to Support Judicial Takings

The plurality opinion in <i>Stop the Beach Renourishment</i> references woodchucks, the Queen of Hearts, and Orwell.

By Joseph Z. Fleming – November 3, 2011

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection,No. 08-1151, 130 S. Ct. 2592 (2010), Justice Scalia stated at the outset that “We consider a claim that the decision of a State’s court of last resort took property without just compensation in violation of the Takings Clause of the Fifth Amendment, as applied against the States through the Fourteenth . . .” 130 S. Ct. at 2597. While that issue was raised by the petitioners, the Supreme Court concluded that the state had not engaged in a taking as contended. This was because the petitioners, based on an analysis of the Florida law, including common-law rulings, failed to establish ownership of property allegedly taken and the “Florida Supreme Court’s decision did not contravene the established property rights of petitioners.” Id. at 2613. The Court concluded the claim of the petitioners as members of an organization of beachfront, or littoral, owners contesting a state program, which would expand eroded beachfront (by “renourishment,” or depositing sand in restoration and then maintaining it in “nourishment”), did not eliminate the owners’ property rights as to their existing property; the extended beachfront that would occur thereafter (and only through natural slow deposit, or “accretion”); or their beachfront “access” to the water. As a result, the Court affirmed the decision of the Supreme Court of Florida, which had concluded that the statute enabling the restoration of the eroded beaches (and then maintenance for nourishment), was not an unconstitutional taking. The Florida Supreme Court had set aside an appellate court order concluding to the contrary (and ruling in favor of the petitioners’ organization, which represented many beachfront owners).

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