September 9th, 2009 — By — In News & Events

OCA files amicus brief in SCOTUS beach takings case

On September 4, OCA Hawaii Member Robert Thomas filed an amicus brief on behalf of the Owners’ Counsel of America in Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).
The U.S. Supreme Court will consider whether a 2008 Florida Supreme Court decision which upheld the Florida Beach and Shore Preservation Act and reversed more than a century of Florida law constitutes a “judicial” taking. Additionally, the Court will decide whether the Florida court’s decision violated the Fifth Amendment’s due process guarantee.

In Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court held that the Florida statute permitting “beach renourishment” projects without a permit did not effect a taking of littoral (beachfront) property, even though it altered the long-standing common law rights of the owners to accretion on their land and direct access to the ocean.

The brief focuses on three issues:

  • First, the notion of “property” embodies core components transcending a state court’s power to redefine. The rule of accretion, which insures that littoral parcels remain so, is one of those fundamental components.
  • Second, the remedy for a judicial taking is invalidation of the state court judgment.
  • Third, this brief summarizes several of the more notable instances where state courts have openly and notoriously rewritten established rules of property. This was accomplished under the guise of “correcting” errors in long-standing common law doctrines, reinterpreting terms to alter their commonly understood meanings, or “discovering” that private property is (and has been all along) subject to a public trust.

More about this case and links to the various briefs filed thus far by the property owners and amici is available on Robert Thomas’s inversecondemnation blog and case resource page and at our previous posts here and here.

See also The Destin Log (the Florida Gulfcoast paper where this property rights battle began) for analysis on how the newest Supreme Court Justice, Sonia Sotomayor, is expected to rule on this case.

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