STOP THE BEACH REN. v. FLA. DEPT. OF ENV. PROT., 08-1151.

• Decision Date: 02 December 2009
• Docket Number: No. 08-1151.,08-1151.
• Citation: 177 L. Ed. 2d 184,130 S.Ct. 2592
• Parties: STOP THE BEACH RENOURISHMENT, INC. v. FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION et al.
• Court: U.S. Supreme Court

130 S.Ct. 2592

560 US __

177 L. Ed. 2d 184

STOP THE BEACH RENOURISHMENT, INC. v. FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION et al.

No. 08-1151.

Supreme Court of United States.

Argued December 2, 2009.

Decided June 17, 2010.

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D. Kent Safriet, Tallahassee, FL, for petitioner.

Scott D. Makar, Tallahassee, FL, for respondents.

Edwin S. Kneedler, for United States as amicus curiae, by special leave of the Court, supporting the respondents.

D. Kent Safriet, Counsel of Record, Richard S. Brightman, Hopping Green & Sams, PA, Tallahassee, FL, for petitioner.

Hala Sandridge, Linda Shelley, Fowler White Boggs P.A., Tampa, FL, Thomas W. Merrill, Counsel of Record, Scott L. Shuchart, Yale Law School, Supreme Court Clinic, New Haven, CT, Kenneth J. Plante, Brewton Plante, P.A., Tallahassee, FL, for respondents Walton County and City of Destin.

Thomas M. Beason, General Counsel, Teresa L. Mussetto, Chief Appellate Counsel, Kara L. Gross, Senior Attorney, Florida Department of Environmental Protection, Tallahassee, FL, Bill McCollum, Attorney General, Scott D. Makar, Counsel of Record, Solicitor General, Timothy D. Osterhaus, Deputy Solicitor General, State of Florida, Office of the Attorney General, Tallahassee, FL, for Respondents, Florida Department of Environmental Protection & Board of Trustees of the Internal Improvement Trust Fund.

Justice SCALIA announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, IV, and V, and an opinion with respect to Parts II and III, in which THE CHIEF JUSTICE, Justice THOMAS, and Justice ALITO join.

We consider a claim that the decision of a State's court of last resort took property without just compensation in violation of the Takings Clause of the Fifth Amendment, as applied against the States through the Fourteenth, see Dolan v. City of Tigard, 512 U.S. 374, 383-384, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994).

I

A

Generally speaking, state law defines property interests, Phillips v. Washington Legal Foundation, 524 U.S. 156, 164, 118 S.Ct. 1925, 141 L.Ed.2d 174 (1998), including property rights in navigable waters and the lands underneath them, see United States v. Cress, 243 U.S. 316, 319-320, 37 S.Ct. 380, 61 L.Ed. 746 (1917); St. Anthony Falls-Water Power Co. v. St. Paul Water Comm'rs, 168 U.S. 349, 358-359, 18 S.Ct. 157, 42 L.Ed. 497 (1897). In Florida, the State owns in trust for the public the land permanently submerged beneath navigable waters and the foreshore (the land between the low-tide line and the mean high-water line). Fla. Const., Art. X, § 11; Broward v. Mabry, 58 Fla. 398, 407-409, 50 So. 826, 829-830 (1909). Thus, the mean high-water line (the average reach of high tide over the preceding 19 years) is the ordinary boundary between private beachfront, or littoral¹ property, and state-owned land. See Miller v. Bay-To-Gulf, Inc., 141 Fla. 452, 458-460, 193 So. 425, 427-428 (1940) (per curiam); Fla. Stat. §§ 177.27(14)-(15), 177.28(1) (2007).

Littoral owners have, in addition to the rights of the public, certain "special rights" with regard to the water and the foreshore, Broward, 58 Fla., at 410, 50 So., at 830, rights which Florida considers to be property, generally akin to easements, see ibid.; Thiesen v. Gulf, Florida & Alabama R. Co., 75 Fla. 28, 57, 78, 78 So. 491, 500, 507 (1918) (on rehearing). These include the right of access to the water, the right to use the water for certain purposes, the right to an unobstructed view of the water, and the right to receive accretions and relictions to the littoral property. Id., at 58-59, 78 So., at 501; Board of Trustees of Internal Improvement Trust Fund v. Sand Key Assoc., Ltd., 512 So.2d 934, 936 (Fla.1987). This is generally in accord with well-established common law, although the precise property rights vary among jurisdictions. Compare Broward, supra, at 409-410, 50 So., at 830, with 1 J. Lewis, Law of Eminent Domain § 100 (3d ed.1909); 1 H. Farnham, Law of Waters and Water Rights § 62, pp. 278-280 (1904) (hereinafter Farnham).

At the center of this case is the right to accretions and relictions. Accretions are additions of alluvion (sand, sediment, or other deposits) to waterfront land; relictions are lands once covered by water that become dry when the water recedes. F. Maloney, S. Plager, & F. Baldwin, Water Law and Administration: The Florida Experience § 126, pp. 385-386 (1968) (hereinafter Maloney); 1 Farnham § 69, at 320. (For simplicity's sake, we shall refer to accretions and relictions collectively as accretions, and the process whereby they occur as accretion.) In order for an addition to dry land to qualify as an accretion, it must have occurred gradually and imperceptibly—that is, so slowly that one could not see the change occurring, though over time the difference became apparent. Sand Key, supra, at 936; County of St. Clair v. Lovingston, 23 Wall. 46, 66-67, 23 L.Ed. 59 (1874). When, on the other hand, there is a "sudden or perceptible loss of or addition to land by the action of the water or a sudden change in the bed of a lake or the course of a stream," the change is called an avulsion. Sand Key, supra, at 936; see also 1 Farnham § 69, at 320.

In Florida, as at common law, the littoral owner automatically takes title to dry land added to his property by accretion; but formerly submerged land that has become dry land by avulsion continues to belong to the owner of the seabed (usually the State). See, e.g., Sand Key, supra, at 937; Maloney § 126.6, at 392; 2 W. Blackstone, Commentaries on the Laws of England 261-262 (1766) (hereinafter Blackstone). Thus, regardless of whether an avulsive event exposes land previously submerged or submerges land previously exposed, the boundary between littoral property and sovereign land does not change; it remains (ordinarily) what was the mean high-water line before the event. See Bryant v. Peppe, 238 So.2d 836, 838-839 (Fla.1970); J. Gould, Law of Waters § 158, p. 290 (1883). It follows from this that, when a new strip of land has been added to the shore by avulsion, the littoral owner has no right to subsequent accretions. Those accretions no longer add to his property, since the property abutting the water belongs not to him but to the State. See Maloney § 126.6, at 393; 1 Farnham § 71a, at 328.

B

In 1961, Florida's Legislature passed the Beach and Shore Preservation Act, 1961 Fla. Laws ch. 61-246, as amended, Fla. Stat. §§ 161.011-161.45 (2007). The Act establishes procedures for "beach restoration and nourishment projects," § 161.088, designed to deposit sand on eroded beaches (restoration) and to maintain the deposited sand (nourishment). §§ 161.021(3), (4). A local government may apply to the Department of Environmental Protection for the funds and the necessary permits to restore a beach, see §§ 161.101(1), 161.041(1). When the project involves placing fill on the State's submerged lands, authorization is required from the Board of Trustees of the Internal Improvement Trust Fund, see § 253.77(1), which holds title to those lands, § 253.12(1).

Once a beach restoration "is determined to be undertaken," the Board sets what is called "an erosion control line." §§ 161.161(3)-(5). It must be set by reference to the existing mean high-water line, though in theory it can be located seaward or landward of that.² See § 161.161(5). Much of the project work occurs seaward of the erosion-control line, as sand is dumped on what was once submerged land. See App. 87-88. The fixed erosion-control line replaces the fluctuating mean high-water line as the boundary between privately owned littoral property and state property. § 161.191(1). Once the erosion-control line is recorded, the common law ceases to increase upland property by accretion (or decrease it by erosion). § 161.191(2). Thus, when accretion to the shore moves the mean high-water line seaward, the property of beachfront landowners is not extended to that line (as the prior law provided), but remains bounded by the permanent erosion-control line. Those landowners "continue to be entitled," however, "to all common-law riparian rights" other than the right to accretions. § 161.201. If the beach erodes back landward of the erosion-control line over a substantial portion of the shoreline covered by the project, the Board may, on its own initiative, or must, if asked by the owners or lessees of a majority of the property affected, direct the agency responsible for maintaining the beach to return the beach to the condition contemplated by the project. If that is not done within a year, the project is canceled and the erosion-control line is null and void. § 161.211(2), (3). Finally, by regulation, if the use of submerged land would "unreasonably infringe on riparian rights," the project cannot proceed unless the local governments show that they own or have a property interest in the upland property adjacent to the project site. Fla. Admin. Code Rule 18-21.004(3)(b) (2009).

C

In 2003, the city of Destin and Walton County applied for the necessary permits to restore 6.9 miles of beach within their jurisdictions that had been eroded by several hurricanes. The project envisioned depositing along that shore sand dredged from further out. See Walton Cty. v. Stop the Beach Renourishment, Inc., 998 So.2d 1102, 1106 (Fla.2008). It would add about 75 feet of dry sand seaward of the mean high-water line (to be denominated the erosion-control line). The Department issued a notice of intent to award the permits, App. 27-41, and the Board approved the erosion-control line, id., at 49-50.

The petitioner here, Stop the Beach Renourishment, Inc., is a nonprofit corporation formed by people who own beachfront property bordering the project area (we shall refer to them as the Members). It brought an administrative challenge to the...