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Florida’s Beach Restoration Program Weathers a Storm in the Courts: Stop the Beach Renourishment v. Florida Department of Environmental Protection

Featured Article

Turtle on Beach If you have been to the beach in Florida, chances are it was restored by the government at some point in the past. This beach restoration has been performed pursuant to the Florida Beach and Shore Preservation Act.1 A t least 205 of the state’s 825 miles of sandy beaches have been restored.2 A critical feature of the act is the establishment of a fixed erosion control line (ECL) at the shore before the restoration is commenced.3 O nce set, the line becomes the permanent property line between private property and state property.4 A n ECL is determined according to the criteria set forth by the act5 a nd reflects the mean high water line on the date of the survey.

Typically, the property boundary line at the shore (the “littoral” boundary line at the shore of the Atlantic Ocean or the Gulf of Mexico, and the “riparian” boundary line at the shore of any inland bodies of water) is not fixed. Despite the extraordinary significance that beaches have to the geography of Florida, its history of growth, and the health and vitality of its economy, there has apparently not been much appellate litigation over disputes at the shore between upland land owners and the state, or others using the beaches. Consequently, there is not much case law precedent in Florida on the dynamics of property rights and interests in the shore. Nevertheless, the key features of the law have been identified, though they perhaps have not been fully explored and their terms delineated. The Florida Constitution provides that the title to lands under navigable waters — including beaches below mean high water lines — is held by the state, by virtue of its sovereignty, in trust for all the people. Private use of portions of such lands may be authorized by law, but only when not contrary to the public interest. This is consistent with the common law existing since the time of Justinian under the name of the public trust doctrine.6

Under the public trust doctrine, the state holds in trust all lands on the Atlantic and Gulf coasts below mean high water for the use and enjoyment of the residents and visitors of the state and has been tasked by voters and the legislature to preserve and protect these beaches and lands as important natural resources.7 P rivate upland owners of land at the shore own to the mean high water line.8 T hough the public’s right or ability to use the sand beach area of the shore above the daily high water line (the area between the high tide line and the dune line or point where vegetation begins) is not entirely clear, the public and the upland property owner both possess the right to use and enjoy the area from the mean high water line out to the sea. This area of common rights and interests is typically referred to as the wet sand beach.

Most people going to the beach would probably be surprised to learn that the “mean high water line” identifying the boundary between public and private property is not the line where the tides have placed the shells or seaweed, but is a line drawn on the basis of the preceding 19 years of tides.9 T he mean high water demarcation line on a visit to the beach may actually be very different than the water line, the debris line, or even the dune line on a particular day. This 19-year line is nevertheless critical to the line of demarcation between private upland and public land when property rights are concerned.

The state holds all land waterward of the mean high water line in trust for the use and enjoyment of the people. If the shore erodes, the property line moves landward, and the upland property owner loses land. Conversely, if accretion occurs at the shore, the property line moves waterward, and the upland property owner gains land. However, when an ECL is established and a beach is restored, the new dry land does not belong to the upland property owner.

These legal features of littoral property were central to Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, 560 U.S. ___, 130 S. Ct. 2592, 177 L. Ed. 2d 184 (2010), for, if the restored beach belongs to the state, it can be used by the people, and upland property owners cannot prevent people from occupying this area, nor can they insist the public stay only at the water’s edge. Upland owners will perceive that their private beach has been replaced by a public beach. Additionally, if the upland property owner believes there is a chance the beach will somehow restore itself naturally by accretion, and is willing to take that chance, the owner loses the opportunity to add that land to his or her property and shoo the public from it.

Blanket and umbrella between beach and condosThe Storm in the Courts
The plaintiffs in Stop the Beach Renourishment (STBR) are a group of six property owners along a 6.9-mile stretch of beach in Destin, Walton County, where a beach restoration project was being undertaken. The beach had been significantly damaged by several hurricanes and storms, including hurricanes Opal, Georges, and Ivan.10 Plaintiffs administratively challenged the issuance of the permit, as well as the constitutionality of the act in light of its provisions for fixing the littoral property line.11 Specifically, STBR claimed these provisions were unconstitutional because they took their property rights to future accretion and the ability to have permanent contact with the water without providing for just compensation. The administrative law judge considered the act constitutional.12

STBR appealed to the First District Court of Appeal, which in an opinion by Judge (now Justice) Polston, reversed the administrative law judge’s decision, and held that the act’s provisions for the ECL deprived plaintiffs of their property rights to future accretions and contact with the water without providing for just compensation.13 In support of its decision, the court referenced language in Board of Trustees of the Internal Improvement Trust Fund v. Sand Key Associates, Ltd., 512 So. 2d 934, 936 (Fla. 1987), that littoral rights include vested rights “to have the property’s contact with the water remain intact,” and “to receive accretions and relictions,” and in Belvedere Development Corporation v. Department of Transportation, 476 So. 2d 469 (Fla. 1985), that the riparian right to access cannot be severed from an upland property without compensation.14 The court nevertheless certified the question as one of great public importance.15

The Florida Supreme Court accepted the case on the basis of both mandatory and discretionary jurisdiction.16 On September 29, 2008, the Florida Supreme Court reversed the First District Court of Appeal, and held that the act’s provisions on property rights and interests do not, on their face, effect an unconstitutional taking of the upland owner’s property. The court carefully reviewed Florida’s common law on the public and private property rights and interests at the shore, juxtaposed the act with that common law, and concluded that the act, on its face, does not unconstitutionally deprive upland owners of littoral property without just compensation.

Examining the common law, the court observed that striking a fair balance between competing public and private rights and interests has factored significantly in the formulation of the legal principles that inform the issues presented in this case. It explained that under the public trust doctrine, the state holds the lands seaward of the mean high water line, including the beaches between the mean high and low water lines, in trust for the public for the purposes of bathing, fishing, and navigation. In addition, the state has an obligation to conserve and protect Florida’s beaches as important natural resources, presumably under the police power, but also specifically by virtue of an act of the legislature — F.S. §161.088.17

The court also explained that private upland owners also hold bathing, fishing, and navigation rights at the shore in common with the public. The common law also recognizes that upland owners possess four special or exclusive rights: 1) the right to have access to the water; 2) the right to reasonably use the water; 3) the right to accretion and reliction; and 4) the right to the unobstructed view of the water.18 These rights have two important limitations and one significant intrinsic value: 1) They are only “such as are necessary for the use and enjoyment” of the upland property; 2) they “may not be so exercised as to injure others in their lawful rights”; and 3) they are property rights that are protected by the constitution, and, therefore, cannot be taken from upland owners without just compensation. The court decided that under Florida common law, there is no independent right of contact with the water. Instead, contact is ancillary to the littoral right of access to the water.19

The court explained by way of background that these special rights to access, reasonable use, and unobstructed view are rights in the nature of easements.20 Access and use rights are affirmative easements that give upland owners the right to enter upon the public trust property for their enjoyment.21 Further, a littoral upland owner’s common law right to access does not necessarily require direct contact with the water. Direct access to the water is ancillary to the right to use, not an independent right of its own. Under Florida’s common law, rights are unconstitutionally taken when sovereignty lands are used in a way that deprives the upland owner of the right of access to the water. And, though there is a private right to access and use, there is no absolute right to a seaward boundary at the water’s edge in Florida. Additionally, the right to accretion is a contingent, future interest that only becomes a possessory interest if and when land is added to the upland by accretion.22

Against this common law backdrop, the court examined the act’s provisions, again placing emphasis on balancing both the common and competing interests of the public and the private upland owner. The court noted the act only provides for renourishment of beaches that have been determined to be critically eroded, and only applies to beaches that have sustained significant loss due to avulsive events, such as hurricanes.23 Because under the common law hurricanes are considered avulsive events rather than events of accretion, the court then discussed the doctrine of avulsion, which had not been addressed by the First District.24 In contrast to the law of accretion, under the doctrine of avulsion, the boundary between public lands and privately owned uplands remains the high water mark as it existed before the avulsive event.25 And when an avulsive event leads to the loss of land, the common law of avulsion affords the affected property owner the right to reclaim the lost land within a reasonable time.26 Therefore, as the avulsive event affects both the private owner as well as the public, the public has as much right as the upland owner to restore its shoreline up to that line which existed before the avulsive event occurred. In short, the state would not be doing anything under the act that it would not be entitled to accomplish under Florida’s common law.27

The court noted the act protects the rights of the upland owner as well as the public, and seeks to balance those rights.28 providing for the addition of sand to sovereignty lands, the act prevents further loss of public beaches. At the same time, it gives relief to private upland owners by restoring beach already lost and by protecting their property from future storm damage and erosion. On balance, the public gains back the beach it lost, and the private upland owner gains protection from further loss of the upland property. Although the act provides that the state may retain title to the newly created dry land directly adjacent to the water, upland owners may continue to access, use, and view the beach and water as they did prior to beach restoration. As a result, at least facially, there is no material or substantial impairment of these littoral rights under the act.29

On balance, the upland owner’s littoral right of access is preserved under the act. The renourished beach may be wider than the typical foreshore, but the ultimate result is the same for the upland owner as it would be if the renourishment had not occurred. The upland owner still has an easement right to access and use, as well as to an unobstructed view, and though he or she no longer has a property line that would afford a property boundary at the water’s edge, the right to access the water is not materially or substantially impaired.

The court specially discussed Belvedere, which STBR and the First District had relied upon to conclude the act affected a taking of the upland owner’s property right to access. The court noted that Belvedere was neither controlling, nor even relevant.30 Belvedere, the court said, was limited to the context of government attempting to avoid taking damages by extending to a property owner the right of access when, at the same time, the government was condemning the entire upland. Furthermore, unlike in Belvedere, when the owners retained no other property, STBR’s members still had both their upland land and the ability to exercise their associated littoral rights to access, use, and view.31

However, Justices Lewis and Wells dissented. Justice Lewis claimed “the majority” “had ‘butchered’ Florida law” in attempting to find “equitable answers” to the issues in the case, and had “simply erased well-established Florida law without proper analysis.”32 Justice Lewis argued that the logic upon which the entire foundation of the majority opinion is based inherently assumes that contact with the particular body of water has absolutely no protection and is just some ancillary concept that tags along with access to the water. To him, “our common law, statutes, and Constitution indicate that the right of contact with the water is neither ‘independent of,’ nor ‘ancillary to,’ riparian and littoral property, its ownership, and associated protected rights.”33 Such contact is inherent in, and essential to, the very heart of littoral property. In his view, by definition littoral property is property that has a boundary with the water, and all property rights attendant thereto exist by virtue of the land’s contact with the water. Therefore, contact cannot be a mere concept ancillary to the formal property right of access.34 In his view, as well, Belvedere’sprinciple that riparian rights cannot be separated from littoral uplands was well established and controlling.35 Likewise, as far as he was concerned, Sand Key plainly said the common law littoral right to access “includes” the right to have the property’s contact with the water remain intact.36

Furthermore, in his opinion, the court’s reliance on the law of avulsion is unavailing because, under the common law of avulsion, though the state may reclaim land lost by avulsion, so too a littoral property owner has rights to land submerged by avulsion.37

Collectively, the majority and dissenting opinions created fertile ground for further argument and appeal. The majority had drawn upon the law of avulsion, though it had not even been considered by the district court. It had repeatedly referred to “balancing” rather than hard, fast rules. And it had reached a result some still viewed as tenuous. After all, one day a littoral owner’s property ended at the water’s edge; the next day, there was 75 feet of beach between the owner’s property line and the water.

The U.S. Supreme Court Takes the Case
STBR petitioned the U.S. Supreme Court for certiorari, basing its request on a claim that the Florida Supreme Court had “invoked ‘nonexistent rules of state substantive law’” to justify its decision and effected a judicial taking of the littoral property of coastal property owners in Florida. STBR further claimed that the Florida Supreme Court’s decision regarding the act’s provisions setting forth the respective property of beachfront owners and the state was not only unconstitutional, it was also a violation of its due process rights under the Fifth and 14th amendments. On June 15, 2009, the requisite number of justices voted to take the case.

The Briefs and Arguments
STBR focused its merits brief on four key arguments: 1) The shore at the subject location was not critically eroded, and the renourishment project was simply undertaken to create a purely public beach; 2) prior to the Florida Supreme Court’s decision, Florida’s background principles of littoral property law established rights to direct and exclusive, immediate, and direct access to the ocean and the right to accretions; 3) the Florida Supreme Court’s decision was a judicial taking of STBR’s property rights to accretion and direct contact with the water; and, critically 4) the court should recognize, for the first time in constitutional jurisprudence, a judicialtaking of private property without just compensation in violation of the Constitution of the United States.38

On the issue of judicial takings, STBR tracked language used by Justice Stewart in his concurring opinion in Hughes v. Washington, 389 U.S. 290 (1967), and from Justice Scalia in his dissent from denying certiorari in Stevens v. City of Cannon Beach, 510 U.S. 1207 (1994). In Hughes, Stewart had written that, in his view, a case could be made for a judicial taking if a state supreme court’s judicial decision on the law of private property “constitutes a sudden change in state law, unpredictable in terms of relevant precedents.”39 When the court denied certiorari in Stevens, Scalia wrote a dissent in which he said that a state court cannot nullify a taking of private property, “by invoking nonexistent rules of state substantive law,” to declare that a claim of property never existed in the first place.40

The Department of Environmental Protection and the Board of Trustees of the Internal Improvement Trust Fund filed a merits brief,41 as did Walton County and the City of Destin.42 Both the department’s and the board of trustees’ merits briefs focused on the critical features of the act and the enormous value of beach restoration. Their brief devoted substantial discussion to the act’s property rights’ protections, before, as well as after, restoration. Next, the department and the board turned to the constitutional questions and made four points of their own: 1) The Florida Supreme Court’s decision was consistent with its prior decisions on the law of riparian and littoral property, most notably the court’s decisions regarding avulsive changes in Martin v. Busch, 112 So. 274 (Fla. 1927), and Bryant v. Peppe,238 So. 2d 836 (Fla. 1970); 2) there is no recognized common law right in Florida to “contact with the water”; 3) Florida common law recognizes a vested littoral right to existing accretions and accretions when they occur, but not to speculative future accretions when accretion is absent; and 4) there is no recognized federal taking in this case because there was no physical taking, nor was there a per se taking under Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), or a regulatory taking under Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978).

Walton County and the City of Destin pointed out that the case is fundamentally a state law rather than a federal law matter. They argued that because the case below was decided only as a matter of Florida constitutional law, and STBR had presented a federal constitutional claim only when it petitioned the U.S. Supreme Court, procedurally, the only question before the court was whether there can be a judicial taking. That being the case, they argued that the court has never recognized a judicial taking and should not do so now. Yet, even if there could be a taking, this case does not evidence such a judicial taking because the Florida Supreme Court’s decision has fair support in the state’s previous law, and does not have such a severe impact on beachfront property owners’ property rights as to take their property without just compensation as a matter of federal law. Like the department and board of trustees pointed out, the county and city said even if the act and the Florida Supreme Court’s decision had changed the law of property, there has been no taking in this instance under the federal constitution because no private land was taken; beachfront owners retained their recognized property rights of view, access, and use of the waters, and the owners and their properties received critical protections against future storm damage.

The Assistance of the Amici
Takings cases are carefully watched by a small but extremely well-organized collection of interest groups and academics, many of whom presented their thoughts about this case to the court in amicus briefs. There were essentially an equal number of amici who presented briefs in support of each of the parties. The amicidid an excellent job of letting the parties present the chief arguments and discussion and presenting, instead, the points or observations in the theoretical and policy interstices of the case and the issues. As a result, the case and the issues were well-presented to the court.43

The U.S. solicitor general also filed an amicus brief in support of the respondents and the nation’s beach restoration program.44 The brief addressed only the issue of whether the court should recognize a judicial taking and urged the court not to do so. The solicitor general pointed out that the court has never held that a state judicial decision may effect a taking under the just compensation clause. It would be anomalous to hold that a decision defining state property rights also itself “takes” property. Creating a concept of judicial takings could unduly cabin the discretion of state courts to adapt the state’s property law to new circumstances, upset the federal-state balance by assessing liability based upon judicial decisions rather than on legislative and executive action, and encourage relitigation of property disputes as judicial takings. The solicitor general also suggested that this case was ill-suited to stand as the case in which judicial takings are hereafter recognized because the Florida Supreme Court did not sua sponte affect property, but rather, only ruled on the constitutionality of an act of the legislature which arguably affected property. Further, the Florida Supreme Court had clearly applied settled common law principles to the particular situation of a beach restoration project. No prior decision had held that upland owners possessed property rights to receive future accretions and maintain contact with the water, as against the state’s interests in filling its own submerged lands to protect beach resources and upland property. To the contrary, several prior decisions recognized the state’s right to create dry lands out of submerged lands and retain title to them, precluding upland property from any influence of accretion or reliction, and maintaining any contact with the water.

The Supreme Court’s Oral Argument
The court held oral argument on December 2, 2009. Kent Safriet, partner with Hopping, Green & Sams, argued the case for the petitioners. Florida Solicitor General Scott Makar argued the case for the respondents, and Deputy U.S. Solicitor General Edwin Kneedler argued for the respondents.45

The parties and their amici left the oral argument with no clear sense of the likely outcome. The same was clearly true for the media.46

The Court Decides the Case, But Leaves One Issue for Another Day
The U.S. Supreme Court decided the case on June 17, 2010. Justice Scalia wrote the judgment of the court, though he wrote for the court on only the issue of whether the act’s provisions took STBR’s members’ property.47 This critical issue to the state and the plaintiffs — did the state take private property when it established an erosion control line during restoration of the beach? — was dispatched in short order. On this issue, the justices unanimously agreed that the act — and, therefore, the Florida Supreme Court — did not take STBR’s members’ property. The justices found that Florida’s common law of littoral property allows the state to create dry land by public work, such as by lowering the water level of a lake or by filling an eroded beach. They agreed with the Florida Supreme Court’s application of its law of littoral property, and in particular, its application of the law of avulsion to the case. Justice Scalia’s opinion observes that in Florida, as in common law, the littoral owner automatically takes title to dry land added to his or her property by accretion, but formerly submerged land that has become dry land by avulsion continues to belong to the owner of the seabed (usually the state).48 Consequently, regardless of whether an avulsive event exposes land previously submerged or submerges land previously exposed, the boundary between littoral property and sovereign land does not change; it remains the mean high-water line before the event. The littoral land owner does not get the new land and has no right to subsequent accretions at the water’s new edge.49 Justice Scalia noted that also, according to Florida’s common law, the state, as owner of the submerged land adjacent to littoral property, has the right to fill that land, so long as it does not interfere with the rights of the public and the rights of littoral landowners.50

Given these fundamental principles and their natural effects, Justice Scalia wrote that the issue in this case distills to whether there is an exception to these rules when the state is the cause of the avulsion. And on this question, Florida’s common law reasonably indicates there is not.51 Although the Florida Supreme Court did not specifically cite to it in its decision, the justices agreed with DEP and those amiciwho had cited to it, that Martin v. Busch, decided by the court in 1927, held that dry land created at the water’s edge by the state when it lowered the level in Lake Okeechobee belonged to the state rather than the riparian property owner.

Thus, Florida law as it stood before the decision below allowed the state to fill in its own seabed, and the resulting sudden exposure of previously submerged land was treated like an avulsion for purposes of ownership. The right to accretions was, therefore, subordinate to the state’s right to fill.52

Further, the language in Sand Key, appearing to indicate there is a littoral property right to always have contact with the mean high water line, was dicta, and if it was, the law would contradict the established Florida law on avulsion. Therefore, Justice Scalia observed, “[o]ne cannot say that the Florida Supreme Court contravened established property law by rejecting it.”53

Having decided the takings question specifically presented by the case, Justice Scalia did not need to address the issue of judicial takings. Nevertheless, he did, and his opinion was joined by Chief Justice Roberts and Justices Alito and Thomas. In their view, a court can effect a taking without just compensation if it “declares that what was once an established right of private property no longer exists.”54 Yet, Justice Scalia’s opinion on the matter of judicial takings did not carry a majority. Justices Breyer and Ginsburg responded that it was unnecessary to address the issue in light of the unanimous decision and declined to take a position at this time. They also cautioned that unnecessarily expressing any views on the issue at this time “would invite a host of federal takings claims.”55 Justices Kennedy and Sotomayor agreed that the issue should not have been addressed and any opinions were premature. Additionally, however, Justice Kennedy set forth a number of difficulties that need to be considered before accepting a theory of judicial takings.56 He opined that judicial decisions that eliminate an established property right could easily be addressed and remedied under the due process clause.57

Post Game Summaries
Based on the opinions of the justices, it is fair to surmise that when they received STBR’s petition for writ of certiorari, four justices saw this case as an opportunity to say there are judicial takings and took it as an avenue for establishing such a taking. But over the following 12 months, they could not get a fifth vote, particularly a vote from Justice Kennedy.This perception is supportedby theassignment of the court’s opinion to Justice Scalia, as well as Justice Scalia’s vilification of Justice Kennedy and his explanation for not joining his opinion.58 Although Justice Scalia also had criticism for Justice Breyer’s opinion59 (characterizing Justice Breyer’s opinion asreminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?”),60 his criticism was particularly directed at Justice Kennedy. He characterized Justice Kennedy’s opinion as suggesting the “Orwellian explanation: ‘The court did not take your property. Because it is neither politically accountable nor competent to make such a decision, it cannot take property.’”61 Justice Scalia also cited to what he believed were Justice Kennedy’s writings in other cases implying that his belief that judicial elimination of established property rights can be remedied by the due process clause was in conflict with his position in other cases, and accused him of Lochner-izing.62

The four justices who joined in Justice Scalia’s opinion probably saw this case as a lost opportunity to establish another precedent in the law of property rights. In light of the criticism they leveled at their colleagues, they also probably saw it as unlikely the court would recognize judicial takings anytime in the near future.

Florida Department of Environmental Protection Secretary Michael W. Sole issued a statement on June 17, 2010, expressing the department’s pleasure with the court’s decision and observing that the decision had affirmed that the act is constitutional.63 Despite having lost the case, STBR and its amici have taken solace in Justice Scalia’s opinion that he (and his three colleagues) would recognize judicial takings, as well as Justice Kennedy’s and Justice Sotomayor’s belief that judicial decisions that eliminate property rights may be remedied as violations of due process. On their sites and blogs, the case was a win because the court sent a message to state courts that their actions affecting property rights are not immune.64

In the end, the parties and interest groups advocating in this case will spin the justices’ opinions to suit their political positions. There will be spirited disagreement and debate on what this case means for the future, in Florida as well as in every state with a coastline. Littoral property owners in Florida opposed to the presence of the public will challenge projects on the basis of whether there is a showing that the beach is critically eroded, or will question the location of the ECL, since a location too far landward will still constitute a taking. Others, like the group of at least 150 beachfront owners in Walton County who successfully did so, may try to eliminate public presence behind their homes by installing illegal permanent seawalls and gaining after-the-fact dispensation from the legislature and governor.65 In academia, there likely will be more written on the subject of judicial takings. What is undeniable, however, is that Florida’s beach restoration program is constitutional, and that debate is over, once and for all.

1 Fla. Stat. §§161.011-161.45 (2010).

2 Florida Department of Environmental Protection, Bureau of Beaches and Coastal Systems, Strategic Beach Management Plan at 2(May 2008), available at Florida Department of Environmental Protection, Beaches and Coastal Systems, Beach Erosion Control Program, available at

3 Fla. Stat. §§161.161(3)-(5).

4 Fla. Stat. §161.191(1).

5 Fla. Stat. §161.161(5).

6 J. Inst.: II:I:1, II:I:3, II:I:5. Justinian (Flavius Sabbatius Justinianus) was an Eastern Roman Emperor from 527 to 565. Among other accomplishments, he is famous for the development of the Corpus Iurus Civilis (the Justinian Code) during his reign.

7 Fla. Const. art. X, §11; Fla. Const. art. II, §7(a); Fla. Stat. §161.088.

8 Fla. Stat. §177.28.

9 Fla. Stat. §177.27.

10 Save Our Beaches, Inc. v. Florida Department of Environmental Protection, 27 So. 3d 48, 50 (Fla. 1st D.C.A. 2006); Walton County v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102, 1106 n. 4 (Fla. 2008).

11 Save Our Beaches, 27 So. 3d at 50.

12 Id. at54.

13 Id.

14 Id. at 60.

15 Id.

16 Walton County, 998 So. 2dat 1105. See also Fla. Const. art. V, §§3(b)(1) and 3(b)(4).

17 Walton County, 998 So. 2dat 1107.

18 Id. at 1111.

19 Id.

20 Id. at 1112, 1119.

21 Id.

22 Id.

23 Id. at 1115, 1121.

24 Id. at 1116. “Accretion” is the gradual and imperceptible accumulation of land by natural causes. In contrast, “avulsion” is a sudden and perceptible loss or addition to the land by the action of water. Black’s Law Dictionary (5th ed. 1979).

25 Id. at 1117.

26 Id.

27 Id.

28 Id. at 1115.

29 Id.

30 Id. at 1120.

31 Id.

32 Id. at 1121.

33 Id. at 1124.

34 Id. at 1122.

35 Id. at 1123.

36 Id.

37 Id. at 1125.

38 STBR’s Merits Brief, available at

39 Hughes, 389 U.S. at 296.

40 Stevens, 510 U.S. at 1207.

41 Brief of Respondents, Department of Environmental Protection and the Board of Trustees of the Internal Improvement Trust Fund, available at

42 Brief for Respondents, Walton County and the City of Destin, available at

43 American Bar Association, Preview of U.S. Supreme Court Cases, Amicus Briefs, Though all participants’ briefs were vital to the case, space permits only a listing of a representative list. For STBR: CATO Institute, Pacific Legal Foundation, Southeastern Legal Foundation, Center for Constitutional Jurisprudence, National Association of Homebuilders, and Eagle Forum; for DEP, TIITF, Walton County, and Destin: Surfrider Foundation, The American Planning Association, The National Association of Counties, The National League of Cities, Florida League of Cities, Florida Association of Counties, and Florida Beach and Shore Preservation Association.

44 Brief for the United States as Amicus Curiae Supporting Respondents, available at

45 Transcript of Oral Argument in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, et al., No 08-1151 (Dec. 2, 2009), available at The transcipt is worth reading, as it sheds light on the dynamics of the court’s subsequent decisions.

46 See, e.g., Nina Totenberg, High Court Weighs Florida Beach Case, NPR All Things Considered (December 2, 2009),; Bill Mears, Justices Debate Rights of Beachfront Land Owners, CNN (December 2, 2009), (“It was unclear from the one-hour public session which way the justices might go on the case.”);David G. Savage, Justices Appear to Favor Homeowners in Florida Beach Dispute, Los Angeles Times, December 3, 2009, available at“The Supreme Court justices, hearing a Florida case Wednesday, seemed to agree with property owners who said that their rights to a private beach could not be taken away when the state added new sand to an eroded shoreline.”); Adam Liptak, Homeowner Rights and Hot Dog Sellers are Talk of Court, NY Times, December 2, 2009,

47 Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, 560 U.S., 130 S. Ct. 2592, 177 L. Ed. 2d 184 (2010).

48 Stop the Beach Renourishment, Inc., 130 S.Ct. at 2599.

49 Id.

50 Id. (referring to Hayes v. Bowman, 91 So. 2d 795, 799-800 (Fla. 1957), and State ex rel. Buford v. Tampa, 88 Fla. 196, 210-211, 102 So. 336, 341 (1924)).

51 Stop the Beach Renourishment, Inc., 130 S.Ct. at 2611.

52 Id. at 2611.

53 Id. at 2613.

54 Id. at 2602.

55 Id. at 2619.

56 Id. at 2613-15.

57 Id. at 2615-16.

58 Id. at 2604-2608 (Part II.C).

59 Id. at 2602-2604 (Part II.B).

60 Id. at 2603.

61 Id. at 2605.

62 The term Lochner-izing” derives its name from Lochner v. New York, 198 U.S. 45 (1905), when the U.S. Supreme Court struck down a maximum hour law of the State of New York. The court’s decision has been characterized by subsequent constitutional scholars as the poster child for judicial activism under the guise of the Due Process Clause. See Cass R. Sunstein, Naked Preferences and the Constitution, 84 Colum. L. Rev. 1689 (1984).

63 Florida DEP, Statement from Florida Department of Environmental Protection Secretary Michael W. Sole Regarding the “Save our Beaches” U.S. Supreme Court Order (June 17, 2010),

64 See, e.g., CATO @ Liberty, Mixed Result in Complicated Property Rights Case (June 17, 2010),;Pacific Legal Foundation, News Release, PLF Statement on High Court’s Beach Renourishment Decision (June 17, 2010),;Capital, Statement by Kent Safriet and Richard Brightman, Hopping Green & Sams, P.A., Regarding U.S. Supreme Court Decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection(June 17, 2010),;The Federalist Society, New Practice Groups Podcast: Stop the Beach Renourishment (August 5, 2010),

65 This year’s legislative bill implementing the General Appropriations Act (H.B. 5003, enacted as Ch. 2010-153), contained a late rider (§67) prohibiting the Department of Environmental Protection from requiring removal of, or denying permits for, seawalls and coastal armoring structures illegally constructed in Walton County between July 1, 2005, and April 30, 2006, as a result of Hurricane Dennis. These seawalls and armoring structures were authorized only as temporary structures, but most were illegally built as permanent structures, many going 15 feet or more below the surface and the same height above the ground. See John Gibeaut, Up Against the Seawall, ABA J. (July 2006), available at

Gary K. Oldehoff is of counsel to Lewis, Stroud & Deutsch, PL, in Boca Raton. He practices in the areas of complex litigation, local government law, land use and development law, constitutional law, and appellate law. He submitted an amicus brief for the Florida Association of Counties and Florida League of Cities in the Florida Supreme Court, as well as for the Florida Beach and Shore Preservation Association, the Florida Association of Counties, and the Florida League of Cities to the U.S. Supreme Court in the Stop the Beach Renourishment case.

This column is submitted on behalf of the Environmental and Land Use Law Section, Paul H. Chipok, chair, and Gary K. Oldehoff and Kelly Samek, editors.