Walton County v. Stop Beach Renourishment

• Decision Date: 29 September 2008
• Docket Number: No. SC06-1449.,No. SC06-1447.,SC06-1447.,SC06-1449.
• Citation: 998 So.2d 1102
• Parties: WALTON COUNTY, et al., Petitioners, v. STOP the BEACH RENOURISHMENT, INC., et al., Respondents. Florida Department of Environmental Protection, etc., Petitioner, v. Stop the Beach Renourishment, Inc., et al., Respondents.
• Court: Florida Supreme Court

998 So.2d 1102

WALTON COUNTY, et al., Petitioners, v. STOP the BEACH RENOURISHMENT, INC., et al., Respondents.

Florida Department of Environmental Protection, etc., Petitioner, v. Stop the Beach Renourishment, Inc., et al., Respondents.

No. SC06-1447.

No. SC06-1449.

Supreme Court of Florida.

September 29, 2008.

Rehearing Denied December 18, 2008.

Thomas G. Pelham, Special Counsel, Tallahassee, Florida, Hala A. Sandridge of Fowler, White, Boggs, and Banker, P.A., Tampa, Florida, and Kenneth J. Plante, Wilbur E. Brewton, Kelly B. Plante, and Tana D. Storey of Roetzel and Andress, L.P.A., Tallahassee, Florida; Scott Makar, Solicitor General, Tallahassee, Florida; Thomas M. Beason, General Counsel, Teresa L. Mussetto and L. Kathryn Funchess, Senior Assistant General Counsels, Department of Environmental Proctection, Tallahassee, Florida, for Petitioners.

Dan R. Stengle, Richard S. Brightman, and D. Kent Safriet of Hopping, Green, and Sams, P.A., Tallahassee, Florida, for Respondent.

Linda Loomis Shelley of Fowler, White, Boggs, and Banker, P.A., Tallahassee, Florida, on behalf of Florida Shore and Beach Preservation Association; Kenneth J. Plante, Wilbur E. Brewton, Kelly B. Plante, and Tana D. Storey of Roetzel and Andress, LPA, Tallahassee, Florida, on behalf of Florida Association of Convention and Visitors Bureau, Inc.; Gary K. Oldehoff and David M. Pearce on behalf of Florida Association of Counties and Florida League of Cities; Victoria L. Weber of Hopping, Green and Sams, P.A., Tallahassee, Florida, and Keith Hetrick, General Counsel, Florida Home Builders Association, Tallahassee, Florida, on behalf of Florida Home Builders Association; Steven Geoffrey Gieseler and Valerie A. Fernandez, Coral Gables, Florida, on behalf of Pacific Legal Founation, As Amici Curiae.

BELL, J.

We have for review the First District Court of Appeal's decision in Save Our Beaches, Inc. v. Florida Department of Environmental Protection, 31 Fla. L. Weekly D1173, ___ So.2d ____, 2006 WL 1112700 (Fla. 1st DCA Apr.28, 2006). In its decision, the First District certified the following question to be of great public importance:

Has Part I of Chapter 161, Florida Statutes (2005), referred to as the Beach and Shore Preservation Act, been unconstitutionally applied so as to deprive the members of Stop the Beach Renourishment, Inc. of their riparian rights without just compensation for the property taken, so that the exception provided in Florida Administrative Code Rule 18-21.004(3), exempting satisfactory evidence of sufficient upland interest if the activities do not unreasonably infringe on riparian rights, does not apply?

Id. We have both mandatory and discretionary jurisdiction. See art. V, § 3(b)(1), § 3(b)(4), Fla. Const.

Though it phrased its certified question in terms of an applied challenge, the First District actually addressed a facial challenge.¹ Therefore, we rephrase the certified question as follows:

On its face, does the Beach and Shore Preservation Act² unconstitutionally deprive upland owners of littoral³ rights without just compensation?

We answer the rephrased certified question in the negative and quash the decision of the First District. As explained below, we find that, on its face, the Beach and Shore Preservation Act does not unconstitutionally deprive upland owners of littoral rights without just compensation. At the outset, however, we emphasize that our decision in this case is strictly limited to the context of restoring critically eroded beaches under the Beach and Shore Preservation Act.

I. THE CONTEXT

A. Factual and Procedural History

As the First District explained in its opinion [t]he Gulf of Mexico beaches of the City of Destin and Walton County were [damaged] by Hurricane Opal in 1995.[⁴] The ... problem was identified by the Department [of Environmental Protection (Department)], which placed these beaches on its list of critically-eroded beaches. Destin and Walton County then initiated a lengthy process of beach restoration through renourishment. The process, which included extensive studies and construction design and pre-application conferences with Department staff, culminated in the filing of an Application for a Joint Coastal Permit and Authorization to Use Sovereign Submerged Lands on July 30, 2003.

The application proposed to dredge sand from an ebb shoal borrow area south of East Pass in eastern Okaloosa County, using either a cutter head dredge (which disturbs the sand on the bottom of the borrow area and vacuums it into a pipeline which delivers it to the project area) or a hopper dredge (which fills itself and is moved to the project site). On the project site, heavy equipment moves the dredged sand as specified in the design plans. The project is executed in this manner and progresses along the beach, usually at a pace of about 300 to 500 feet a day.

Save Our Beaches, 31 Fla. L. Weekly at D1173, ___ So.2d at ____.

To determine the mean high water line (MHWL) for the restoration area, a coastline survey was completed in September 2003. The Board of Directors for the Internal Improvement Trust Fund (Board) subsequently established an erosion control line (ECL) at the surveyed MHWL. Pursuant to section 161.191(1) of the Beach and Shore Preservation Act, this ECL became the boundary between publicly owned land and privately owned upland after it was recorded. Then, on July 15, 2004, the Department issued a Notice of Intent to Issue the permit.

Stop the Beach Renourishment (STBR)⁵ timely filed two petitions for formal administrative hearings, the first challenging the issuance of the permit and the second raising constitutional issues. A formal administrative hearing was held on STBR's permit challenge while its constitutional challenge was deferred for determination in court proceedings. See Save Our Beaches, 31 Fla. L Weekly at D1174-75, ___ So.2d at ____.⁶

On June 30, 2005, following the administrative hearing, the administrative law judge recommended that the Department enter a final order issuing the permit. The Department entered its final order on July 27, 2005, determining that the permit was properly issued pursuant to existing statutes and rules.

Before the First District, STBR challenged the Department's final order, claiming in essence that the final order is unconstitutional because it was issued pursuant to an unconstitutional statute. Specifically, STBR asserted that section 161.191(1) of the Beach and Shore Preservation Act, which fixes the shoreline boundary after the ECL is recorded, unconstitutionally divests upland owners of all common law littoral rights by severing these rights from the uplands. According to STBR, after the recording of the ECL and by operation of section 161.191(1), the State becomes owner of the land to which common law littoral rights attach because it owns all lands seaward of the ECL. STBR further argued that the littoral rights, which are expressly preserved by section 161.201 of the Act, are an inadequate substitute for the upland owners' common law littoral rights that are eliminated by section 161.191.

The First District agreed the Act divests upland owners of their littoral right to receive accretions and relictions because section 161.191(2) provides that the common law rule of accretion and reliction no longer operates once the ECL is recorded. See Save Our Beaches, 31 Fla. L. Weekly at D1177, ___ So.2d at ____. The First District also agreed that the Act eliminates the right to maintain direct contact with the water since section 161.191(1) establishes the ECL as the shoreline boundary. See id. Furthermore, the First District found that:

Although section 161.201 has language describing a preservation of common law riparian rights, it does not actually operate to preserve the rights at issue . . . [because] Florida's law is clear that riparian rights cannot be severed from riparian uplands absent an agreement with the riparian owner, not even by the power of eminent domain.

Id. (citing Belvedere Dev. Corp. v. Dep't of Transp., 476 So.2d 649 (Fla.1985) as controlling). Thus, the First District held that the final order issued pursuant to the Act results in an unconstitutional taking of the littoral rights to accretion and to contact with water without an eminent domain proceeding as required by section 161.141, Florida Statutes. Id.

The First District remanded for the Department to provide satisfactory evidence of sufficient upland interest pursuant to Florida Administrative Code Rule 18-21.004(3). Id. Then, on July 3, 2006, the First District certified the question of great public importance described earlier. Id.

B. The Beach and Shore Preservation Act

Before addressing the rephrased certified question, it is helpful to provide the relevant portions of the Beach and Shore Preservation Act.

Recognizing the importance and volatility of Florida's beaches, the Legislature in 1961 enacted the Beach and Shore Preservation Act. Ch. 61-246, § 1, Laws of Fla. (codified at §§ 161.011-161.45, Fla. Stat. (2005)). Determining that "beach erosion is a serious menace to the economy and general welfare of the people of [Florida] and has advanced to emergency proportions," the Legislature declared it "a necessary governmental responsibility to properly manage and protect Florida beaches ... from erosion," and to provide funding for beach nourishment projects. § 161.088. The Legislature then delegated to the Department the authority to determine "those beaches which are critically eroded and in need of restoration and nourishment"⁷ and to "authorize appropriations to pay up to 75 percent of the actual costs for restoring and renourishing a critically eroded beach." § 161.101(1).

Pursuant to section 161.141, when a local government applies for funding for beach restoration, a survey of the shoreline is conducted to determine the MHWL for the area. Once established, any additions to the upland property landward of the MHWL that...