Property Takings by a Court Are Still Property Takings

Today, the United States Supreme Court will hear oral arguments in an important property rights case, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, which may have an impact on beach walking along Michigan's Great Lakes shoreline.

At issue before the Supreme Court is whether to recognize the concept of judicial takings, i.e., changes in state law brought about by a judicial decision as opposed to state legislative or executive action. The case arose out of a Florida Supreme Court decision that concerned a state law allowing the state to replenish coastal beaches. This law allowed the state to claim title to land between what had been ocean-front property and the high-water mark, and a majority of the court found it did not affect any property rights.

The United States Supreme Court is interested in whether the Florida court decision is in essence a radical restructuring of state property law that requires compensation under the Fifth Amendment. Were the Court to recognize judicial takings, it would open up the possibility that Michigan Great Lakes shoreline property owners could file takings claims for the Michigan Supreme Court's Glass v. Goeckel decision (assuming that somewhat tricky statute of limitations issues could be resolved). Glass was the 2005 case allowing beach walking on the "public trust" theory that I criticized here, in part on the grounds that Michigan's Great Lakes do not have tides, which negates the need for application of a concept such as a high-water mark.

Land owners need protection from radical changes in property law created by courts. The harm is just the same whether it's the state's executive branch, legislature or courts that take the private property. 

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