Save Our Beaches - the Review

Intro and Disclaimer: after my earlier comments about this decision, I took a lot of time to write this one. I won't back down from my earlier statements that the majority got it wrong - really wrong -- and that Justice Lewis' dissent has it right.

In Walton County et al v. Stop the Beach Renourishment et al, the Florida Supreme Court reversed the First District’s determination that a beach renourishment permit issued by the DEP was invalid because the permit relied on an erosion control line (ECL) that in turn violated a statutory provision that prohibits the establishment of an ECL if it would constitute a taking, unless there was provision for compensation. The establishment of an ECL statutorily fixes the property limits, establishes fee ownership in the state for all lands seaward of the ECL, and replaces certain common law riparian rights with statutory rights.

I first want to note that the case presented significant public policy problems for the Court. The existing beach renourishment statute prohibits beach renourishment without an ECL, even with an easement from the upland owners. This is predicated on a legislative determination that public funds for beach renourishment should not be used to put sand on “private” property (which can be interpreted as having a constitutional basis). Unless this statute were amended, a decision upholding the 1st DCA would have had significant negative consequence for future beach renourishment projects, as well as creating the possibility that existing ECLs would have been overturned – or that the state would have had to compensate landowners in order to keep the ECLs in place. Given these tensions, it is not surprising that the Court would find a way to overturn the 1st DCA.

[Side note: the Court’s resolution of the problem sidestepped the interesting issue of what kind of compensation would have been required for a taking. As the Court found, the statute does provide a number of substantive right to replace the rights destroyed. Where value is “put back” by government action, this is taken into account in calculating damages. It may well have been that any damages due would have been non-existent or nominal, and might even be subject to the kind of administrative “default valuation” that the Court permitted in the citrus canker cases.]

To be short and sweet, I think that Justice Lewis got it right in his dissent, and that the majority not only got it wrong, but got it wrong in a way that was both disingenuous and that creates future litigation problems. I’ll identify just a few of those.

1. The facial taking problem. The Court reengineered this case into being a facial constitutional challenge to the statute. It clearly isn’t for all the reasons set forth in the dissent. This creates several new problems:

a. The Court left the state open to massive federal takings claims – the state has refused to provide compensation under the state constitution, making federal claims ripe and justiciable; if the federal courts disagree that the statute provides an adequate “swap” for the rights taken, it could now find that compensation is due under the U.S. Constitution.

b. The Court pulled a nasty trick on the litigants. It labeled the challenge facial (even though it clearly was , then posited circumstances not pled (regarding how avulsive effects might affect the application of the statute) to hold that the statute could take the right to accretion under all circumstances, so couldn’t be a facial taking. What does this means for pleading as applied challenges? Can the Court always turn around and apply other facts to deny your claim?

The opinion reflects a frightening lack of understanding of how administrative law has developed since Key Haven with respect to litigating administrative challenges where there is a claim that the statute (or action) violates the constitution or another statute - issues that an administrative law judge does not have jurisdiction to decide, but which the Court of Appeal does have jurisdiction over. The Court also did not appear to understand the statutory provisions at issue. Critically, the Court does not recognize (as the 1st District did) that the issue of whether the statute (which provided that an ECL was void if it would create a taking and there was no provision for compensation - which was the case here) was violated as opposed to whether there was a constitutional violation. Under the US Supreme Court decision in First English, a statute does not create an unconstitutional taking unless it both takes property and fails to provide compensation. So under this statute, there is clearly an as applied issue as to whether the ECL in this case violated the statute by taking property (riparian rights) without providing compensation.

The potential damage that the Court's end-orientated analysis (or lack thereof) has on broad areas of litigation where administrative challenges have statutory or constitutional dimensions cannot be overstated. I expect that this is the area where we will see a bunch of articles showing up in the near future.

2. The claims preserved. In two footnotes, the Court notes circumstances that still could create a takings claim. First, if the ECL was established too far landward (landward of the actual MHWL over 19 year period), it could create a taking of the “gap” lands. The Court thus raised a statutory/permitting issue to constitutional status. Second, the Court noted that if the permit allowed too much beach to be added, it could create a taking by imposing burdens on the “right to access” the water. Between the two of these claims, the Court created an entirely new set of as applied attacks that can be waged against the establishment of an ECL and gave them constitutional status.


3. The poor analysis problem. Again, with all due deference to the policy problem facing the Court, the analysis of some of the issues was unrealistic and unconvincing, and many of which are just scary.

a. The new constitutional duty to protect the beach. The Court read the constitutional provisions regarding public trust for navigable waters and waters to the high water mark together with the provision regarding protection of the natural beauty of the state to create an entirely new constitutional provision (and this from a “conservative” jurist!): “Concisely put, the State has a constitutional duty to protect Florida’s beaches, part of which it holds ‘in trust for all the people.’” HOLY COW! What exactly does this mean? Does this constitutional duty extend only to how it regulates the rights of beach owners, or does it mean that the Legislature has a constitutional duty to renourish beaches? Does it have a duty to condemn private property along beaches to create/protect them?

b. The avulsion discussion. I will let others who actually specialize in riparian/littoral rights take this apart. Let’s just say that this seemed to be thrown together to justify why a facial taking wasn’t demonstrated, and in doing so may have created another constitutional problem. The Court argued that the right of landowners to accretion was limited by the avulsion doctrine, such that the state would have the right to lands suddenly added by a hurricane – or the right to put those sands back in the water to return the high water line to its pre-event state. The Court then cited to a true riparian case (freshwater) for the proposition that landowners have a right to return their property to a pre-storm event condition if there is sudden avulsion/erosion from an event. This is going to make for VERY interesting arguments in the future, since DEP and local governments are more and more restrictive about issuing emergency permits to allow landowners to protect their lands after storms. This could create new constitutional challenges to anti-hardening rules/ordinances and other regulatory limits on a landowners’ right to recover property lost to storms.

c. The “swapped rights”. The Court found several “swaps” of rights to be reasonable: the riparian right to accretion is “swapped” for the state’s obligation to maintain the renourished areas; that the riparian “rights of access” is swapped for a statutory “right of access” (undefined); and “rights of view” enjoyed by beachfront property owners are protected.

• i. While it might be arguable that the swap of the right to accretion for a statutory obligation to protect the beach (right) is objectionably reasonable, it is absolutely unclear whether it is appropriate constitutionally – and this is going to be a federal case.
  
• ii. As for the right of access being equal – it’s not, because associated with the ECL and a renourishment then landowner loses (i) the right to exclude the public from areas between the beach and the property, and (ii) the right to use those areas. Here’s the rub: before ECL and renourishment, a beachfront owner can park her Hobie Cat twenty feet from the water and put it in any time, and can keep people away from it; afterward, the landowner can’t do these things (hence the footnote that indicates adding too much beach might be a taking).
• iii. Regarding the right to a view, the Court found that the statutory prohibition on placing structures on the reclaimed lands protected the riparian right to views of the water; but riparian view rights extent to activities on or in the water, and by cutting off the riparian rights, these rights are extinguished. This could have consequences to landowners close to proposed piers, jetties, or similar structures or uses.
  

d. The demise of the “right of contact with the water” and with it, the right to wharfage and access to navigable water. The Court totally mixed together the common law “public trust” doctrine of sovereign ownership to the MHWL with Florida’s constitutional definition that this includes the wet sandy beach to claim that the riparian “right of contact” with the water doesn’t exist. Essentially, the Court argues that the existence of the foreshore (the wet sand between the daily low tide and the daily high tide), along with the fact that the MHWL moves, means that there is no right to touch the water (or that this right is subordinate to or inherent in the right of access). This discussion totally misses the purpose of the right to contact, which along with the right of access supports the historic riparian and littoral right to wharf out to navigable water. While this issue was not discussed in the 1st District opinion (and probably not have been tried in the context of the as applied administrative challenge to the permit), the right to construct a pier or wharf in order to connect the upland to navigable waters was associated with and dependant on the right of access to the water and whether the property touched the water – purely upland property didn’t and doesn’t have this right. While it is unlikely that any individual homeowner would utilize that right, commercial or other properties might – at least until it’s extinguished by the establishment of an ECL

I can only suggest that we haven’t seen the last of this issue, and that the next round of litigation is likely to be even more challenging.