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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

Things we were reviewing today:

  • My colleague Mark Murakami has set up a resource page for all things about the McDonald v. City of Chicago case. That’s the appeal currently being considered by the Supreme Court challenging Chicago’s ability to regulate firearms under the Second Amendment. What’s most interesting about the case is not the gun issue, but the legal arguments regarding whether the Privileges or Immunities Clause incorporated the entire Bill of Rights against the states. Slaughter-House, anyone?
  • The Texas Supreme Court today heard oral arguments in Severance v. Patterson (a case we discussed here). It is in the Texas court on certified questions from the Fifth Circuit. More here including the briefs, and the archive of the video of the arguments here. The certified questions

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Continue Reading Thursday’s Links

Another very interesting conference call today, focusing on theupcoming arguments in the Stop the Beach Renourishment case, the New York Court of Appeals’ decision in Aspen Creek, and the New Jersey Supreme Court’s decision to review Klumpp v. Borough of Avalon. Here arethe links to some of the cases and other topics discussed duringtoday’s call, and other items of interest which we didn’t have time for:

  • A resource page for the Stop the Beach Renourishment case – merits and amici briefs, media links, and commentary.
  • Our summary of the New York court’s decision in Aspen Creek Estates, Ltd. v. Town of Brookhaven, 12 N.Y.3d 735 (N.Y. 2009), cert. denied, No. 08-1444 (U.S. Oct 5, 2009).
  • More about the “bizarre condemnation,” Klumpp v. Borough of Avalon, No. A-2963-07 (per curiam). See also this post on the case from the New Jersey Condemnation Law blog.

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Continue Reading Links From ABA Condemnation Committee Conference Call (11/18/2009)

The judiciary web site has posted the recording of the November 10, 2009 Intermediate Court of Appeals oral arguments in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (HAWICA) here (caution, it is a massive 88 MB mp3 file).

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. More about thearguments, including the briefs, here. Disclosure: we filed an amicus brief supporting the property owners, available here.Continue Reading Beachfront Taking Case (HAWICA) Oral Argument Recording

The property owners have filed their Reply Brief in Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), the case about “judicial takings” and the rights of littoral owners to accretion.

Oral arguments in the Supreme Court are set for December 2, 2009.

More about the case on our resource page.

Disclosure: we filed an amicus brief supporting the Petitioners, available here.Continue Reading Petitioner’s Reply Brief In SCOTUS Beachfront Takings Case

In an order issued yesterday, the U.S. Supreme Court granted the SG’s motion for leave to participate in oral argument as amicus curiae and for divided argument in Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). The federal government’s amicus brief is available here.

In Walton County v. Stop the Beach Renourishment, Inc.,998So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court heldthat a state statute which prohibits “beach renourishment” without apermit did not effect a taking of littoral (beachfront) property, eventhough it altered the long-standing rights of the owners to accretionon their land and direct access to the ocean. The U.S. Supreme Court isconsidering whether the Florida court’s reversal of more than 100 yearsof Florida law was a judicial taking, and whether the Florida court’sdecision violated due process.

We filed an amicus brief in the case…

Continue Reading Solicitor General To Get Face Time In Judicial Takings Case

In United States v. Milner, No. 05-35802 (Oct. 9, 2009), a panel of the Ninth Circuit held that littoral (waterfront) property owners in Washington state may be liable for common law trespass and for violations of the Rivers and Harbors Act of 1899 because their land has eroded and their “shore defense structures” (rip-rap and bulkheads) now intersect with the boundary between public tidelands and their private property.

The case involves tidelands held in trust by the federal government for the Lummi Nation, pursuant to treaty and President Grant’s executive order. Upland owners erected and maintained structures on the tidelands to blunt the force of the waves, initially under a lease from the Lummi Nation which expired in 1988. The public-private boundary is the mean high water (MHW) mark, and over the years, the shoreline eroded and as of 2002, many of the structures were seaward of the…

Continue Reading Ninth Circuit: Let It Erode – Littoral Owners Have No Right To Install Shore Defense Structures On Their Land

In “Supreme Court’s Regulatory Takings Case Draws Widespread Interest,” the New York Times reports about yesterday’s filings by amici supporting the government in the beachfront taking case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

The Supreme Court would likely resist such overt involvement intakings disputes, according to Jay Austin, senior attorney with theEnvironmental Law Institute.

“The only thing that petitionershave to cite to even suggest any precedent is a concurring opinion byformer Justice Potter Stewart in another beach case 40 years ago,”Austin said.

“Well, he’s the justice who famously said aboutobscenity that ‘I’ll know it when I see it.'” This case would put thejustices in the same position, he said, adding: “Just like they had toscreen films in the basement of the Supreme Court to see whether theywere obscene, they’d have to wade into all of…

Continue Reading NY Times On Gov’t Amici In Florida Beach Judicial Takings Case