Property Rights and the Supreme Court

Tim Sandefur of the Pacific Legal Foundation has a very good article in The National Law Journal on the important property rights case Stop the Beach Renourishment v. Florida Department of Environmental Protection that the Supreme Court will be hearing this term:

The case involves a Florida statute determining the boundaries of oceanfront property. Under a 1961 law, the state drew a brand-new line separating public and private land on certain beaches, meaning that some land that would have been privately owned would belong instead to the state. A group of property owners filed suit, arguing that the law deprived them of property without just compensation, violating the state and federal constitutions.

Last December, Florida's highest court rejected their arguments. It held that, while the new boundary gave the state ownership of the beach land, the former owners actually had no such right to begin with. Despite more than a century of Florida law to the contrary, the court announced that the owners actually only had a right to "access" the ocean, and because the state promised to allow them to keep crossing the land to reach the water, it actually hadn't taken anything away when it seized the land itself.

Via the Cato Institute's Ilya Shapiro, who reminds us, "Despite the dreadful decision in the Kelo case several years ago, the fight to maintain the fundamental right to private property continues in our courts and legislatures." Here's hoping the Supreme Court gets this one right.

Comments

[Tomcat1066]

"Here's hoping the Supreme Court gets this one right."

We can hope, but I don't see any reason to get my hopes to high.

[Warren]

Same here, I'd bet against the SCOTUS overturning FL. If there was someone who believes they will.

[R C Dean]

because the state promised to allow them to keep crossing the land to reach the water, it actually hadn't taken anything away when it seized the land itself.

Err, no. The fundamental property right is the right to exclude. The state took that right.

Under this line of reasoning, the state should never have to pay anyone when it takes their land to build a road. Hey, they can still "cross" the property and "access" it, right?

I wouldn't want to make the call on how SCOTUS will rule on this. On the one hand, this looks like an easy case on the merits - of course its a taking. On the other, its For a Good Cause, paying for what they took would cost a bloody fortune, etc.

Its a tossup.

[merk]

Coastal property rights are a tough issue since beaches and coastal land erode. It's possible for 50 feet of land to turn into the part of the gulf/ocean in a 10 year period. Whole 100 square meter islands or peninsulas are commonly swept away if man doesn't intervene (and sometimes because they intervene somewhere else, which creates a whole new set of legal issues). I don't know why the state changed the public/private land boundaries on select beaches, but that is probably why. If so, the question would be rather the property owners have the right to try to renourish the eroded beach (which the state and/or local gov't evidently didn't do, or at least not with conviction) and, in the process, save their property rights. You could also ask if the people should now own the water rights.

[R C Dean]

You could also ask if the people should now own the water rights.

Not really. Navigable water, most definitely including the ocean, is never privately owned.

[Pro Libertate]

Our supreme court sucks. One of the dark secrets about the 2000 election was that the U.S. Supreme Court had to untwist the stupid, overtly political opinion of the Florida supreme court to get to a reasonable conclusion under Florida law. I actually laughed when I read the original Florida opinion--something I don't often do when reading caselaw.

[robc]

The Supreme Court rules in a IN v KY case (dont know the actual case name) that the state boundary (the north border of the Ohio river) did not move, but was where the river was in 1792 when KY became a state. Thus, Indiana "owns" part of the river and Kentucky owns land north of the river.

This ruling because important when IN wanted riverboat gambling. The casinos are all located in parts of the river that were originally dry land north of the river.

Applying that case (which may not apply since individual ownership is a different thing that state boundaries) to this one, the fact that beaches eroded shouldnt change property boundaries at all.

[Isaac Bartram]

One of the dark secrets about the 2000 election was that the U.S. Supreme Court had to untwist the stupid, overtly political opinion of the Florida supreme court to get to a reasonable conclusion under Florida law.

Correct me if I'm wrong, PL, but wasn't the SCOTUS unanimous in ruling that the Fla SC ruling sucked? But four of them thought they deserved a do-over, or something.

Actually, I seem to recall that one of the Fla Supremes wrote a caustic dissent in the second ruling where they extended the deadline for "recounts". He really slammed them for blatant partisanship. Can't remember who he was but like the rest he had been appointed by a Democratic governor.

It still amazes me that the Republicans were able to steal an election in a state where most of the election machinery was controlled by Democrats. It further amazes me that the Democrats couldn't.

[Isaac Bartram]

Applying that case (which may not apply since individual ownership is a different thing that state boundaries) to this one, the fact that beaches eroded shouldnt change property boundaries at all.

Normally ownership of private property extends to the center of a stream or river. There's a bunch of shit about navigable streams and rivers etc, too (see R C Dean's comment above). When the stream moves (due to erosion etc) your boundary moves. It's called riparian rights. And you're correct, it's different for private property vs state boundaries. Normally if a river moves the state line stays where the river was at the time of statehood. I'm not exactly sure what happens to any title held by a nonstate actor in such a case.

One exception to the thread of the stream rule is the NJ-Delaware border which is at the normal waterline on the NJ bank of the Delaware River. This means that Delaware has cpmplete control over the entire river which gives them effective veto control on the construction of any kind of port facility on the Jersey side. But I digress.

Each coastal state has it's own definitions on ownership of oceanfront property but it's normally based on the high tide line. I hadn't realized there was any contoversy in Fla's law.

Anyway land surveyors who are experts in locating tidal lines have the highest incomes in the profession. One I know of got a fee over a hundred thousand dollars for the boundary survey of a casino property in Atlatic City in the 70s.

[Isaac Bartram]

If I remember my land surveyors property law correctly under the Fla law the state claims fifty feet from the mean high waterline.

Oddly enough, unless I read wrongly, this suit was brought by property owners seeking to prevent beach renourishment which I've always seen as a subsidy to ocenfront property owners. Without it most of them would soon find the surf pounding on the dorsteps.

Frankly I'm puzzled. i await someone who can clear this up for me.