Here, Elisabeth Oppenheimer of Stanford Law School recaps Stop the Beach Renourishment, Inc. v. Florida (08-1151), which was argued before the Supreme Court on Wednesday, December 2. Elisabeth’s preview of the case can be read here. Check the Stop the Beach Renourishment SCOTUSwiki page for additional updates.

Lyle Denniston has ably recapped the argument in Stop the Beach Renourishment v. Florida on this blog, but here's a little more detail on the Florida law that is likely to decide the outcome.  Justice Kennedy explained that "we have to become real experts in Florida law" to decide the judicial takings question, and the Court spent most of the argument doing just that.

The most important cases are the inscrutable Martin v. Busch and the more straightforward Board of Trustees v. Sand Key Associates.  Sand Key is important for the landowners because it states their key proposition: littoral rights include the right to have one's property contact the high-water line.  None of the justices seemed concerned that the statement is clearly dicta, and Justice Scalia mused that it struck him as a simply "correct" statement of most coastal states' law.  The problem for the landowners is that another Florida common-law doctrine, avulsion, can deprive a beachfront property owner of his or her right of contact with the water.  Avulsion comes into play when a dramatic event (for instance, a hurricane) changes the coastline, submerging land or uncovering new dry land.  After an avulsion"”unlike a gradual accretion"”the boundary line between private and state land remains fixed.  So, if the avulsion uncovers new dry land, someone who owned beachfront property may no longer have contact with the water.

The justices spent their morning trying to figure out two questions:  is the state's beach restoration equivalent to an avulsive event, and if so, does the doctrine apply to artificially created avulsions?  The 1927 Martin case, involving a lake drained by the state, is the main precedent, but nobody"”not the justices, the attorneys, or Florida Supreme Court justices over the decades"”could figure out what it meant. In fact, the Sand Key majority spent several pages explaining the case, only to have the dissent label their analysis a "tragic confusion."  The justices on Wednesday generally agreed that Martin is the best support for the decision below; however, Justice Alito wondered what the Court should "do about the fact that the Florida Supreme Court didn’t rely on it?""”for, inexplicably, that court never cited Martin. Nobody had a good answer.

In short, all this comes down to a very difficult Florida case that even the Florida Supreme Court's justices have vehemently disagreed on.  The Court may yet reach the judicial takings question"”Chief Justice Roberts, in particular, kept trying to push the constitutional issue"”but it seems possible they will instead decide to leave questions of avulsion and accretion to the Florida Supreme Court for now.

Posted in Stop the Beach v. Florida, Uncategorized