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The Florida Beach Case and the Road to Judicial Takings


Michael C. Blumm


Lewis & Clark Law School

Elizabeth B. Dawson


Lewis & Clark Law School

August 31, 2010

William & Mary Enviromental Law & Policy Review, Vol. 35, Forthcoming
Lewis & Clark Law School Legal Studies Research Paper No. 2010-26

Abstract:     
In Stop the Beach Renourishment v. Florida Department of Environmental Protection, the U.S. Supreme Court unanimously upheld a state beach restoration project against landowner claims of an unconstitutional taking of the property. This result was not nearly as surprising as the fact that the Court granted certiorari on a case that turned on an obscure aspect of Florida property law: whether landowners adjacent to a beach had the right to maintain contact with the water and the right to future accretions of sand.

The Court’s curious interest in the case was piqued by the landowners’ recasting the case from the regulatory taking claim they unsuccessfully pursued in the Florida courts to the judicial taking they argued before the Supreme Court. The petitioners contended that the Florida Supreme Court’s interpretation of Florida property law warranted constitutional compensation because the effect was to replace an eroded, hurricane-ravaged private beach with a restored publicly accessible beach. Although no member of the Court agreed that the lower court’s opinion amounted to a taking, a four-member plurality, led by Justice Scalia and encouraged by numerous amicus briefs filed by libertarian property groups, gave a ringing endorsement to concept of judicial takings. Moreover, two other members of the Court, Justices Kennedy and Sotomayer, claimed that state court property law interpretations could be cabined by the Due Process Clause. The result portends ominous implications for state courts’ capability to perform their traditional common law function of updating property law to reflect contemporary values and may unsettle federal-state juridicial relations by encouraging litigants to appeal adverse state property law decisions to federal courts.

Number of Pages in PDF File: 59

Keywords: judical takings, environmental law, property, natural resources law, constitutional law, administrative law

JEL Classification: K11, K32, K40, K23, Q24, Q28

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Date posted: September 2, 2010 ; Last revised: April 13, 2011

Suggested Citation

Blumm, Michael C. and Dawson, Elizabeth B., The Florida Beach Case and the Road to Judicial Takings (August 31, 2010). William & Mary Enviromental Law & Policy Review, Vol. 35, Forthcoming; Lewis & Clark Law School Legal Studies Research Paper No. 2010-26. Available at SSRN: http://ssrn.com/abstract=1669707

Contact Information

Michael C. Blumm (Contact Author)
Lewis & Clark Law School ( email )
10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States
503-768-6824 (Phone)
503-768-6701 (Fax)
Elizabeth B. Dawson
Lewis & Clark Law School ( email )
10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States
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