Beach access, protection at stake in Supreme Court

December 3, 2009

This op-ed appeared Dec. 3 in the Tallahassee Democrat.

By: Michael Allan Wolf
Michael Allan Wolf, the Richard E. Nelson Chair in Local Government Law at the University of Florida Levin College of Law, is a lifelong Yankees fan and the author of “The Zoning of America: Euclid v. Ambler.”

Referees and umpires are sometimes accused of trying to correct bad calls during games with “make-up calls” in favor of the wronged team or player.

U.S. Supreme Court observers have long speculated over instances in which judicial umpires, like their counterparts in sport, appear to have attempted to compensate for an unpopular decision with one more to the liking of public critics.

Could the court’s wildly unpopular decision in Kelo v. City of New London prompt the justices to render a more private-property friendly decision in Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection, a Florida case being argued this week?

In the new case, the Florida Supreme Court in September of 2008 upheld the state’s Beach and Shore Restoration Act, despite the charge that the statute unconstitutionally violated the private property rights of beachfront owners. The case came out of a 2005 beach restoration project in Walton County.

In a somewhat convoluted opinion, the court majority seemed to manipulate existing principles and rules of property law so that the statute would pass judicial muster. The landowners and their legal allies have alleged to the nation’s highest tribunal that, by changing its interpretation of the law, the state court had “taken” private property in violation of the Fifth Amendment to the U.S. Constitution.

Only four years — and scores of recriminations — ago, the U.S. Supreme Court announced its decision in Kelo, which upheld the use of eminent domain to take private property as part of a comprehensive economic redevelopment project in a distressed New England city. None of the members of the court — not the five in the majority nor their four dissenting colleagues — could have anticipated the sudden and sustained backlash.

Beginning with the release of the court’s opinion, news and political Web sites, newspaper headlines and editorials, and radio and television screeds condemned what was perceived as judicial disrespect for the sanctified rights of property owners.

To those who believed the media hype, the decision somehow set in motion an out-of-control government bulldozer that threatened every home in America. Most court observers were surprised, too, not only by the media reaction, but by the backlash in roughly 40 states in which lawmakers and voters imposed new restrictions on the use of eminent domain.

At first glance, some of the justices, four years after the boos and catcalls, might see Stop the Beach as a chance to send a message to the public that they really do care deeply about private property rights and in the process correct the “bad call” in Kelo.

That would be a mistake.

With apologies to bookies and oddsmakers, the decision at hand is much more complicated than sports, and the stakes much higher. If the high court accepts the constitutional argument of the landowners — that the state Supreme Court “took” their property simply by rendering a judicial opinion — the ramifications could be profound.

The justices face the risk of diminishing state sovereignty, reducing the independence of state judges, and jeopardizing the legality of a wide range of judge-made property principles. These principles have long been used by state courts to enhance the public’s right to recreate on the beach and to protect sensitive bodies of water from environmental harm.

If the U.S. Supreme Court accepts this new, expansive takings theory, not only is public access to beaches at stake, but also states and localities will be much more hesitant to devise and implement strategies designed to contend with the new realities of rising seas and super-sized coastal storms.

A judicial misstep in Stop the Beach might result in another uproar and yet another make-up call in the future. It’s too bad courts don’t have instant replay.