The U.S. Supreme Court recently handed down a very interesting decision. The Court’s decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection (No. 08-1151) must be viewed in two parts.  The opinion can be found at

First, the Court unanimously rejected property owners’ claims that a Florida beach reclamation project constituted an unconstitutional taking. Under Florida law, beachfront property seaward of the median high-water mark belongs to the state, while the owners of beachfront property own the land between that line and their homes. Florida cities put new sand on beaches which extended the beaches into the sea by seventy-five feet. The new land would belong to the state and owners of adjacent property would not have exclusive access to the water or own any new land subsequently added naturally.

Justice Scalia wrote the opinion for the unanimous Court (Justice Stevens did not participate) ruling that there was no taking. The decision was based upon Florida law that property owners do not have any right to the filled-in land and that the state has the right to fill in its own seabed.
The second and more interesting issue, was whether there can be a “judicial taking” – that is, whether a decision by a Judge could constitute a taking. 4 members of the Court – Justices Scalia, Roberts, Thomas and Alito – went out of their way to consider and find that there can be a judicial taking. They stated that a judicial taking occurs in situations where a “court declares that what was once an established right of private property no longer exists.” Justice Scalia, writing for this plurality, opined that “it would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat.”

There were 2 opinions dissenting from this part of Justice Scalia’s opinion. Justices Sotomayor, Kennedy, Breyer and Ginsburg, in essence, concluded that they should not address the question of whether there could be a judicial taking since they found that, in any event, there was no taking in that case.

It is very difficult to predict what, if any, impact this case will have. The first part of the case is limited to Florida property law. The second part – whether there can be a judicial taking – did not have a majority opinion. Further, it is uncertain, if not unlikely, that a lower court judge will want to conclude that a Judge’s decision constituted a taking.