June 21st, 2010 — By — In News & Events

Supreme Court Rules “No Taking” in Florida’s Stop the Beach Renourisment Case

There has been much chatter and discussion regarding the U.S. Supreme Court Opinion issued June 17, 2010 in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-1151. (See list of links below for much of this chatter.) As many have said, the opinion is “fragmented” with various groupings of Justices agreeing on different parts of the decision, nonetheless all 8 Justices agreed that there was no taking. (Justice Stevens recused himself, presumably he owns oceanfront (now “ocean view”) property in Florida.)

SCALIA, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, IV, and V, in which ROBERTS, C. J., and KENNEDY, THOMAS, GINSBURG, BREYER, ALITO, and SOTOMAYOR, JJ., joined, and an opinion with respect to Parts II and III, in which ROBERTS, C. J., and THOMAS and ALITO, JJ., joined. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment, in which SOTOMAYOR, J., joined. BREYER, J., filed an opinion concurring in part and concurring in the judgment, in which GINSBURG, J., joined. STEVENS, J., took no part in the decision of the case.
-Syllabus of the Opinion, pg. 4

In short and despite the fragmented decision, in Part I of Justice Scalia’s Opinion, the 8 Justices who did decide this issue affirmed the 2008 decision of the Florida Supreme Court against the property owners. The Justices found that the Florida Supreme Court decision did not constitute a taking of private property without just compensation in violation of the Takings Clause.

The item that caused fragmentation among the Court was the issue of “judicial takings.” In discussing this Justice Scalia refers to the age-old riddle (or tongue-twister) “how much wood would a woodchuck chuck if a woodchuck could chuck wood?” Robert Thomas discusses this particularly interesting comment in his blog.

One cannot know whether a takings claim is invalid with-out knowing what standard it has failed to meet. Which means that JUSTICE BREYER must either (a) grapple with the artificial question of what would constitute a judicial taking if there were such a thing as a judicial taking (reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?), or (b) answer in the negative what he considers to be the “unnecessary” constitutional question whether there is such a thing as a judicial taking.
-Opinion, pg. 11

Although as Robert pointed out, this might be something we never expected from the Supreme Court, we are reminded of the oral argument in this case where the discussion did seem to focus on hot dog stands and beach parties for quite a bit of time.

Although this is not the outcome that we might have wished for in this case (OCA filed an amicus brief in support of the property owners, after all, we are the Owners’ Counsel of America), some argue that it’s not as bad as it may seem. Timothy Sandefur argues on PLF’s blog: “Whatever one thinks about the end result of the decision, the crucial fact is that Justices Scalia, Thomas, Alito, and Roberts recognize that state courts do not have free rein to redefine private property at will.”

Links discussing SCOTUS Opinion in Stop the Beach Renourishment:

  • Robert Thomas’s inversecondemnation blog: here, here, here and here and see his Resource Page here.
  • Land Use Prof Blog here.
  • PropertyProf Blog here.

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