Shoreline Issues

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SCOTUSBLOG has published its analysis of the issues in the Florida beach renourishment/judicial takings case.  Its post is here.  My partner, Robert Thomas, has a resource page here.  The oral arguments will be on December 2, 2009.

Per SCOTUSBLOG:

Should the court find that a judicial taking occurred, several issues will need to be addressed.  First, there’s the standard of review.  Second, there’s the issue of remedy:  a taking is only unconstitutional if there is no compensation, but courts have no funds for compensation. Finally, there’s the issue of which courts can actually review judicial takings claim.  The Rooker-Feldman doctrine suggests that lower federal courts cannot.  Thus, the justices may create a claim in this case that only they can adjudicate.

Today, Robert Thomas, Tred Eyerly and I filed an amicus brief on behalf of the Owners’ Counsel of America supporting the Petitioner in the Florida Shoreline Case. 

Our brief is here.

The Questions Presented to the U.S. Supreme Court is:

The Florida Supreme Court invoked “nonexistent rules of state substantive law” to reverse 100 years of uniform holdings that littoral rights are constitutionally protected. In doing so, did the Florida Court’s decision cause a “judicial taking” proscribed by the Fifth and Fourteenth Amendments to the United States Constitution?

Is the Florida Supreme Court’s approval of a legislative scheme that eliminates constitutional littoral rights and replaces them with statutory rights a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

Is the Florida Supreme Court’s approval of a legislative scheme that allows an executive agency to unilaterally modify a private landowner’s property boundary without a judicial hearing or the payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

Our brief highlights three legal points:

First, the definition of “property,” while largely left up to the states to craft, does include some universal normative principles which are protected by the federal Constitution.  Among these are the right to exclude others and, in this case, the right of littoral landowners to accreted land.

Second, when a state supreme court changes the definition of “property” to the owner’s detriment, a “taking” of property can occur.  Absent the provision of just compensation, the remedy for such action should be the invalidation of the state supreme court’s decision.

Finally, in the areas of shoreline boundaries, custom and public trust, state supreme courts have re-wrote the rules of property without compensating the landowners.  We provided our analysis of the Robinson litigation in Hawaii, the Sotomura litigation in Hawaii, the State ex rel. Thornton v. Hay case (462 P.2d 671 (Or. 1969)) from Oregon, the PASH case from Hawaii and the Matthews v. Bay Head Imp. Ass’n. (471 A.2d 355 (N.J. 1984))case from New Jersey.

One to watch.  Interesting issues of interplay between state laws and the federal Constitution.  This case is especially important in Hawaii where shoreline issues, in terms of ownership and access, are particularly thorny.

The Maui News has a good article recounting one owner's experience with coming up with a solution to the erosion of his oceanfront land that would accomplish his objective (i.e. land preservation) and be palatable to governmental officials.

Seawalls, and efforts to address the often competing interests of property owners and governmental regulators, are controversial and…

Last week, a bill was introduced (H.B. 593) to address concerns about the erosion of Kailua Beach, perhaps Hawaii's most cherished beaches.  Recently, the beach has been subject to unusual erosion leaving shoreline experts puzzled.

This bill directs the Board of Land and Natural Resources to adopt rules relating to the shoreline setback area and mauka (or landward in this case) extent of the conservation zone boundary.

Per the bill:

Accreted beach land, in the form of coastal dunes and dry beach area, is still an integral portion of the  each system.  Accreted land holds the fragile carbonate sands, which the active beach relies upon during periods of episodic erosion.  These same lands will once again transition back into active beach area as the chronic erosion present at the south end of Kailua beach migrates north and as sea-level rises.  As the shoreline migrates through accretion and erosion, so too does the conservation district boundary, where all submerged lands are zoned as resource sub-zone.  The accreted lands, originally within the conservation district, will not only return to the conservation district with subsequent erosion, but also have a significant impact on the function and health of the beach resource to be conserved and protected within the existing conservation district boundaries.  From a management perspective, it is more effective for one agency to steward the entire resource.  As such, the State has a clear interest, as it already manages the existing conservation district and it owns all the lands makai of private property boundaries, including a portion of the accreted lands.  As there are currently no shoreline structures on Kailua beach, with the exception of the boat ramp and ancillary structure at the south end of the beach, there is a significant opportunity for the State to proactively and comprehensively manage the coastal sediment and environmental systems from the nearshore waters to the mauka extent of the shoreline setback area in the best interest of the public, the resource, and the State.  This management scheme will not affect ownership of private property nor dictate the issuance of building permits from the city and county of Honolulu's department of planning and permitting, in conformance with special management area ordinances.

The purpose of this Act is to preserve the existing Kailua beach for the use and enjoyment of future generations.