Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection,
560 U.S. 702 (2010)

Annotate this Case




certiorari to the supreme court of florida

No. 08–1151. Argued December 2, 2009—Decided June 17, 2010

Florida owns in trust for the public the land permanently submerged beneath navigable waters and the foreshore. The mean high-water line is the ordinary boundary between private beachfront, or littoral property, and state-owned land. Littoral owners have, inter alia, rights to have access to the water, to use the water for certain purposes, to have an unobstructed view of the water, and to receive accretions and relictions (collectively, accretions) to the littoral property. An accretion occurs gradually and imperceptibly, while a sudden change is an avulsion. The littoral owner automatically takes title to dry land added to his property by accretion. With avulsion, however, the seaward boundary of littoral property remains what it was: the mean high-water line before the event. Thus, when an avulsion has added new land, the littoral owner has no right to subsequent accretions, because the property abutting the water belongs to the owner of the seabed (ordinarily the State).

      Florida’s Beach and Shore Preservation Act establishes procedures for depositing sand on eroded beaches (restoration) and maintaining the deposited sand (nourishment). When such a project is undertaken, the State entity that holds title to the seabed sets a fixed “erosion control line” to replace the fluctuating mean high-water line as the boundary between littoral and state property. Once the new line is recorded, the common law ceases to apply. Thereafter, when accretion moves the mean high-water line seaward, the littoral property remains bounded by the permanent erosion-control line.   

      Respondents the city of Destin and Walton County sought permits to restore 6.9 miles of beach eroded by several hurricanes, adding about 75 feet of dry sand seaward of the mean high-water line (to be denominated the erosion-control line). Petitioner, a nonprofit corporation formed by owners of beachfront property bordering the project (hereinafter Members) brought an unsuccessful administrative challenge. Respondent the Florida Department of Environmental Protection approved the permits, and this suit followed. The State Court of Appeal concluded that the Department’s order had eliminated the Members’ littoral rights (1) to receive accretions to their property and (2) to have their property’s contact with the water remain intact. Concluding that this would be an unconstitutional taking and would require an additional administrative requirement to be met, it set aside the order, remanded the proceeding, and certified to the Florida Supreme Court the question whether the Act unconstitutionally deprived the Members of littoral rights without just compensation. The State Supreme Court answered “no” and quashed the remand, concluding that the Members did not own the property supposedly taken. Petitioner sought rehearing on the ground that the Florida Supreme Court’s decision effected a taking of the Members’ littoral rights contrary to the Fifth and Fourteenth Amendments; rehearing was denied.

Held: The judgment is affirmed.

998 So. 2d 1102, affirmed.

   Justice Scalia delivered the opinion of the Court with respect to Parts I, IV, and V, concluding that the Florida Supreme Court did not take property without just compensation in violation of the Fifth and Fourteenth Amendments. Pp. 24–29.

   (a) Respondents’ arguments that petitioner does not own the property and that the case is not ripe were not raised in the briefs in opposition and thus are deemed waived. Pp. 24–25.

   (b) There can be no taking unless petitioner can show that, before the Florida Supreme Court’s decision, littoral property owners had rights to future accretions and to contact with the water superior to the State’s right to fill in its submerged land. That showing cannot be made. Two core Florida property-law principles intersect here. First, the State as owner of the submerged land adjacent to littoral property has the right to fill that land, so long as it does not interfere with the rights of the public and of littoral landowners. Second, if an avulsion exposes land seaward of littoral property that had previously been submerged, that land belongs to the State even if it interrupts the littoral owner’s contact with the water. Prior Florida law suggests that there is no exception to this rule when the State causes the avulsion. Thus, Florida law as it stood before the decision below allowed the State to fill in its own seabed, and the resulting sudden exposure of previously submerged land was treated like an avulsion for ownership purposes. The right to accretions was therefore subordinate to the State’s right to fill. Pp. 25–27.

   (c) The decision below is consistent with these principles. Cf. Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1028–1029. It did not abolish the Members’ right to future accretions, but merely held that the right was not implicated by the beach-restoration project because of the doctrine of avulsion. Relying on dicta in the Florida Supreme Court’s Sand Key decision, petitioner contends that the State took the Members’ littoral right to have the boundary always be the mean high-water line. But petitioner’s interpretation of that dictum contradicts the clear law governing avulsion. One cannot say the Florida Supreme Court contravened established property law by rejecting it. Pp. 27–29.

   Justice Scalia, joined by The Chief Justice, Justice Thomas, and Justice Alito, concluded in Parts II and III that if a court declares that what was once an established right of private property no longer exists, it has taken that property in violation of the Takings Clause. Pp. 7–24.

   (a) Though the classic taking is a transfer of property by eminent domain, the Clause applies to other state actions that achieve the same thing, including those that recharacterize as public property what was previously private property, see Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155, 163–165. The Clause is not addressed to the action of a specific branch or branches. It is concerned simply with the act, not with the governmental actor. This Court’s precedents provide no support for the proposition that takings effected by the judicial branch are entitled to special treatment, and in fact suggest the contrary. See PruneYard Shopping Center v. Robins, 447 U. S. 74, Webb’s Fabulous Pharmacies, supra. Pp. 7–20.

   (b) For a judicial taking, respondents would add to the normal takings inquiry the requirement that the court’s decision have no “fair and substantial basis.” This test is not obviously appropriate, but it is no different in this context from the requirement that the property owner prove an established property right. Respondents’ additional arguments—that federal courts lack the knowledge of state law required to decide whether a state judicial decision purporting to clarify property rights has instead taken them; that common-law judging should not be deprived of needed flexibility; and that applying the Takings Clause to judicial decisions would force lower federal courts to review final state-court judgments, in violation of the Rooker-Feldman doctrine, see Rooker v. Fidelity Trust Co., 263 U. S. 413, 415–416, District of Columbia Court of Appeals v. Feldman, 460 U. S. 462, 476—are unpersuasive. And petitioner’s proposed “unpredictability test”—that a judicial taking consists of a decision that “constitutes a sudden change in state law, unpredictable in terms of relevant precedents,” Hughes v. Washington, 389 U. S. 290, 296 (Stewart, J., concurring)—is misdirected. What counts is not whether there is precedent for the allegedly confiscatory decision, but whether the property right allegedly taken was well established. Pp. 20–24.

   Justice Kennedy, joined by Justice Sotomayor, agreed that the Florida Supreme Court did not take property without just compensation, but concluded that this case does not require the Court to determine whether, or when, a judicial decision determining property owners’ rights can violate the Takings Clause. If and when future cases show that the usual principles, including constitutional ones that constrain the judiciary like due process, are inadequate to protect property owners, then the question whether a judicial decision can effect a taking would be properly presented. Pp. 1–10.

   Justice Breyer, joined by Justice Ginsburg, agreed that no unconstitutional taking occurred here, but concluded that it is unnecessary to decide more than that to resolve this case. Difficult questions of constitutional law—e.g., whether federal courts may review a state court’s decision to determine if it unconstitutionally takes private property without compensation, and what the proper test is for evaluating whether a state-court property decision enacts an unconstitutional taking—need not be addressed in order to dispose “of the immediate case.” Whitehouse v. Illinois Central R. Co., 349 U. S. 366, 373. Such questions are better left for another day. Pp. 1–3.

   Scalia, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, IV, and V, in which Roberts, C. J., and Kennedy, Thomas, Ginsburg, Breyer, Alito, and Sotomayor, JJ., joined, and an opinion with respect to Parts II and III, in which Roberts, C. J., and Thomas and Alito, JJ., joined. Kennedy, J., filed an opinion concurring in part and concurring in the judgment, in which Sotomayor, J., joined. Breyer, J., filed an opinion concurring in part and concurring in the judgment, in which Ginsburg, J., joined. Stevens, J., took no part in the decision of the case.

Primary Holding

There is no taking or due process violation when the state modified private property boundary lines during the process of restoring beaches.


Under the common law of Florida, the owner of a beachfront property has title to the dry land that is added to it, unless it is land that was formerly submerged but has become dry through avulsion. By contrast, the state controls land that is permanently submerged between the low-tide line and the mean high-water line. The location of this line can change as a result of accretions, which are sand and sediment added to the land as deposits, or relictions, which are areas that become dry when the water that covered them recedes.

Florida created procedures for beach restoration and nourishment projects under its Beach and Shore Preservation Act. The restoration consisted of adding deposited sand to beaches affected by erosion, while the nourishment consisted of maintaining the deposited sand. The common-law rules no longer applied to areas where a restoration occurred. This was because the Board of Trustees of the Internal Improvement Trust Fund replaced the mean high-water line with an erosion control line as the relevant benchmark. Private property owners did not gain rights to areas where accretion moved the mean high-water line closer to the ocean, instead retaining rights only within the erosion control line. To address this perceived injustice, owners of beachfront property formed a non-profit corporation, Stop the Beach Renourishment, Inc.

The organization sued the state when the Florida Department of Environmental Protection approved a permit by people from throughout the state to pursue a restoration project on seven miles of beach affected by hurricane erosion. The project was anticipated to result in the creation of a 75-foot buffer zone of sand between the erosion control line and the future mean high-water line. Stop the Beach Renourishment prevailed in the lower court, which ruled that property owners had the right to receive the benefit of the accretions and maintain their contact with the water. It found that granting the permits would constitute a government taking for which compensation would be required.

The lower court certified to the Florida Supreme Court the question of whether the Beach and Shore Preservation Act was an unconstitutional taking under the Fifth and Fourteenth Amendments. The Florida Supreme Court not only found that it was not an unconstitutional taking but also quashed the remand by the lower court, denying the property owners a right to the accretions.

Procedural History

Florida First District Court of Appeal - 27 So. 3d 48 (Fla. App. 2006)

Judgment for the plaintiffs. Property owners have a right to the deposits that accumulate on their beachfront.

Florida Supreme Court - 998 So. 2d 1102 (Fla. 2008)

Remand quashed. No government taking has occurred, and the beachfront owners do not have a property right in accretions added to their beachfronts.

Issues & Holdings

Issue: Whether property owners have a right of accretion on the beachfront that is superior to the state's right to fill in reclaimed land.
Holding: No.



  • Antonin Scalia (Author)
  • John G. Roberts, Jr.
  • Clarence Thomas
  • Samuel A. Alito, Jr.

Reviewing the history of the Fifth Amendment and the takings doctrine, Scalia ruled that this area of jurisprudence is just as applicable to a property owner's riparian rights as to property on land. He also pointed out that this doctrine has been applied broadly, covering not only situations when a government literally takes property from a private party through the process of eminent domain but also when it destroys the value of such property through exercising its own property rights. The concept of a regulatory taking requires the government to pay compensation to a property owner if a regulation results in a permanent physical intrusion onto the property or strips it of all economically beneficial value.

Scalia rejected the view that the Takings Clause affected only the actions of the legislature rather than the judiciary. He found that its protections applied to all branches of government, and that any branch of government engages in a taking if it states that a previously established property right no longer exists. This was the only type of taking that could be relevant in this situation, since neither the literal form of taking through the exercise of eminent domain nor the two forms of regulatory taking applied. To prevail in its claim, Stop the Beach Renourishment would need to show that property owners along the ocean had an established right to accretions and contact with the water that was superior to the state's right in the submerged land. Scalia ruled that it was not possible to show that such a prior right existed.


  • Anthony M. Kennedy (Author)
  • Sonia Sotomayor

Kennedy would have relied on the Due Process Clause rather than the Takings Clause in reaching the same conclusion. He felt that a judicial decision that eliminated an existing property right could be struck down as a violation of due process because it would be arbitrary or irrational in defeating the legitimate expectations of property owners. However, he agreed with Scalia that there was no such destruction of an existing right.


  • Stephen G. Breyer (Author)
  • Ruth Bader Ginsburg

Breyer felt that Scalia's response to the plaintiffs' arguments was unnecessarily comprehensive and addressed issues that lay outside the proper scope of the case. He would have preferred to reserve some of the constitutional questions for future review.


  • John Paul Stevens (Author)

Case Commentary

The relevance of this decision may be limited to its specific facts, since the Court's reasoning was based on the doctrine of avulsion, which holds that the state owns the seabed and thus does not need to compensate private property owners for altering it. However, it is notable that the Justices agreed on few other issues in the case and reached the same outcome through a variety of paths.

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