The Florida Beach Case and the Road to Judicial Takings

William & Mary Enviromental Law & Policy Review, Vol. 35, Forthcoming

Lewis & Clark Law School Legal Studies Research Paper No. 2010-26

59 Pages Posted: 2 Sep 2010 Last revised: 13 Apr 2011

Date Written: August 31, 2010


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.

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

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

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:

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

Independent ( email )

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