2009

Here’s a collection of some of the commentary about yesterday’s oral arguments in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection,No. 08-11 (cert. granted. June 15, 2009). The transcript is available here.

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Continue Reading Stop The Beach Renourishment (Judicial Takings Case) Post-Oral Argument Round Up

We’re continuing our summary of today’s oral arguments in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection,No. 08-11 (cert. granted. June 15, 2009). The transcript is available here.

The property owners’ argument summary is posted here, and the State’s argument is here.

Disclosure: we filed an amicus brief in the case supporting the property owners, available here.

U.S.: No Need For Judicial Takings Here

Deputy Solicitor General Edwin S. Kneedler argued for the Obama Administration, which  appeared as amicus curiae in support of the State. Chief Justice Roberts characterized his initial argument — that this is a “conventional” takings case where the Legislature is alleged to have taken property — as a “clever ploy,” asserting “We’re talking about judicial takings and you say, don’t look at what the court did, look at what the legislature did. That changes the whole ball game.”…

Continue Reading SCOTUS Oral Arguments In The Judicial Takings Case: Are “Background Principles” Of Property Law Completely Up To State Judges? (Part III)

We’re continuing our summary of the oral arguments in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection,No. 08-11 (cert. granted. June 15, 2009), the case in which theCourt is considering the theory of “judicial takings” and whether statecourts are constrained by the Fifth Amendment if they suddenly and dramatically change stateproperty law. Disclosure: we filed an amicus brief in the case supporting the property owners, available here.

The transcript is available here, and the property owners’ opening argument summary is here.

A Matter of Inches?

Scott D. Makar, the Florida Solicitor General, argued for the State. He began by distinguishing artificial avulsion and accretion. Tr. at 27-28. He characterized the renourishment as an avulsion, meaning the state would own the new beach under common law:

CHIEF JUSTICE ROBERTS: Well, is your view whenever the State does it, it’s an avulsion?

MR. MAKAR: If…

Continue Reading SCOTUS Oral Arguments In The Judicial Takings Case: Are “Background Principles” Of Property Law Completely Up To State Judges? (Part II)

Today, the U.S. Supreme Court heard oral argument in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection,No. 08-11 (cert. granted. June 15, 2009), the case in which theCourt is considering the theory of “judicial takings” and whether statecourts are constrained by the Fifth Amendment if they suddenly and dramatically change stateproperty law.

The transcript is available here. Justice Stevens did not participate.

Disclosure: we filed an amicus brief in the case supporting the property owners, available here.

New Law Or Old Hat?

Florida attorney D. Kent  Safriet, attorney for the property owners, started off by reminding that the basic premise in regulatory takings is that all branches of state government, including the judiciary, are bound by the Takings Clause. Tr. at 3-4.

Justice Ginsburg, as one might expect, seemed skeptical, suggesting that if beach restoration (“renourishment,” as they call it in Florida) was…

Continue Reading SCOTUS Oral Arguments In The Judicial Takings Case: Are “Background Principles” Of Property Law Completely Up To State Judges? (Part I)

On Wednesday, December 2, 2009, the U.S. Supreme Court will hear oral arguments in the biggest takings case of the year, Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). This is the case in which the Court is considering the theory of “judicial takings” and whether state courts are bound by the Fifth Amendment when they consider state property law. 

The case has been pitched as a contest between littoral property owners’ rights to have beach-front property (as opposed to beach-view property), and a state judiciary’s ability to adopt and shape a state’s common law.

The merits briefs, the 21 amicus briefs, and the decisions of the Florida state courts are available on our resource page. Disclosure: we filed an amicus brief in the case, supporting the property owners, available here.

The Court is considering…

Continue Reading Oral Arguments In Judicial Takings Case: Are State Courts Bound By The Takings Clause?

The Cato Institute’s Ilya Shapiro discusses Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), the case being argued in the U.S. Supreme Court on Wednesday.

We will post a preview of the arguments, but in the meantime, check out our resource page here (includes merits and amici briefs, and the decisions of the courts below).Continue Reading Cato Institute Podcast On Stop The Beach Renourishment (Judicial Takings) Case

In “Beach ownership is still in question,” the Honolulu Star-Bulletin reports on Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175, the appeal currently pending in the Hawaii Intermediate Court of Appeals about whether Hawaii’s “Act 73” effected a taking of property. Thanks to Charley Foster at Planet Kauai for the heads-up on the report.

[Disclosure: we filed an amicus brief supporting the property owners, available here.]

The issue in the case is whether the state, or littoral landowners, are entitled toownership of certain accreted lands. In Act 73, (codifed here and here)the legislature declared that shoreline land naturally accreted belongsto the State of Hawaii and is public property.

The act overturned theage-old rule of shorelineaccretion and erosion, which held that beachfront owners lose ownershipof land when it erodes, but gain it when it accretes. Instead of thesebalanced rules, Act 73 made the…

Continue Reading Hawaii Beach Takings Case In The News