U.S. Supreme Court to Hear Florida Beach Case The United States Supreme Court has agreed to hear a case brought by Florida beachfront property owners challenging the details of Florida's beach nourishment program. At issue is who owns the land newly created when a county or state agency rebuilds beaches destroyed in a hurricane — and whether the state or county has to compensate beachfront landowners when it decides to replace the old "mean high water mark" (MHWM) boundary with a new, formally drawn "erosion control line" (ECL). The case dates back to 1995 and Hurricane Opal, which chewed big chunks out of beaches in the City of Destin in Walton County, Florida. Walton County applied for a state permit to restore the beaches under Florida's Beach and Shore Preservation Act. Under that law, the beach renourishment process requires the government to locate the old MHWM by survey, and then use it as guidance to create a new ECL. Once the new ECL is drawn and the beach work commences, any newly-created land seaward of the ECL belongs to the state — and so does any other new "accretion" caused by natural deposition of sand on the shore, if that should occur. The Beach and Shore Preservation Act defines particular rights of the upland property owner after the new line is drawn — rights that include access to the water, as well as an unobstructed view. But a group of property owners called "Stop the Beach Renourishment, Inc." sued to block Walton County's permit and to stop the work, arguing that the existing rights of property owners under common law — including a claimed right to actual "contact" with the water, as well as ownership of any natural sand deposition in the future — were unconstitutionally erased by the Beach and Shore Preservation Act process, notwithstanding the statutory rights the law explicitly acknowledged. On appeal from Florida's First District court, the Florida Supreme Court held with Walton County, reasoning that the Beach and Shore Preservation Act effectively balanced the upland owners' rights to access with the public's ownership of the navigable water and the intertidal zone. But Stop the Beach Renourishment has now appealed to the U.S. Supreme Court based on a newly raised, broader legal question: whether the Florida Supreme Court's latest re-interpretation of Florida property law, in and of itself, should be termed a "judicial taking" of property, requiring compensation for the property owner under the U.S. Constitution. The property owners argue that the Florida Supreme Court has departed from previous case law in a manner so sudden and extreme that the court decision in itself amounts to a confiscation of property. A coalition of state governments, alarmed by the prospect of a whole new wave of Federal court review, has filed an amicus curiae ("friend of the court") brief in the case on the side of Walton County, urging the Supreme Court not to open up a new can of worms. State Supreme Court rulings can only be appealed to the U.S. Supreme Court, they note, not to lower Federal Courts; and state courts handle a broad range of property rights cases concerning issues that extend far beyond the question of who owns a strip of beach. If the Supreme Court starts to look at state court decisions about property as "takings" cases, the state Attorneys General warn, the Supreme Court will be inundated with appeals of state decisions on issues ranging from divorce settlements to bankruptcies. The Supreme Court doesn't have the time or resources to delve into problems over who towed whose car, argue the states — but "to bring themselves within the rubric of a judicial takings claim, advocates would have little hesitation characterizing unfavorable state court decisions as 'novel,' 'extraordinary,' or 'unprecedented' alterations of their clients’ property rights." And when it comes to "riparian" law — the law concerning the zone where land touches water — the states argue that precedent on the state level is continually evolving, and has a very local flavor. "The development of state boundary law is complex, nuanced and intensely factual, and it reflects each individual State’s historic values and policy preferences," the Attorneys General wrote. "Application of state boundary rules such as accretion and erosion is inherently flexible because state courts constantly encounter unanticipated, complex factual situations and must adapt their common law and statutory rules in a way that makes sense and that is faithful to past precedent.... Because the States’ common law property rules necessarily develop from one case to the next, it is rare that a state court decision abruptly departs from 'settled' law because application of these rules is rarely settled." Like the coastline itself, laws about coastal property are changeable, transient, and tricky to navigate. How the Supreme Court will deal with this particular stretch of surf and boardwalk is yet to be seen; hearings are scheduled for December 2. Further information and copies of opinions and briefs in the case are available at this " Scotus Wiki" page.
