Master U.S. Supreme Court considered whether a state supreme court decision upholding a beach renourishment program effected a judicial taking of littoral rights; the Court affirmed there was no taking. with this comprehensive case brief.
Stop the Beach Renourishment sits at the intersection of property and constitutional law, presenting the Supreme Court with the question whether a court, by redefining state property law, can itself commit a taking under the Fifth and Fourteenth Amendments. The case arose from Florida's effort to combat coastal erosion by adding sand to beaches and fixing a new shoreline boundary, which had the effect of interposing state-owned dry sand between upland owners and the water and of eliminating the owners' prospects for future accretions. Upland owners argued that the Florida Supreme Court, by blessing this statutory regime and reading Florida's common law of littoral rights to accommodate it, had erased established private rights without compensation.
The Court unanimously rejected the takings claim on the merits, but fractured on the broader doctrinal question. A four-Justice plurality would recognize that courts can commit a taking when they declare that established property rights no longer exist; two Justices preferred to police abrupt judicial changes through due process; and two advised avoiding the constitutional question entirely. For students, the case is essential both for its treatment of littoral property interests—accretion, reliction, and avulsion—and for its unresolved, yet influential, engagement with the concept of judicial takings.
560 U.S. 702 (2010) (U.S. Supreme Court)
Florida's Beach and Shore Preservation Act authorizes local governments to restore eroded beaches by depositing sand seaward of the mean high-water line (MHWL). When a renourishment project is approved and constructed, the statute fixes a permanent Erosion Control Line (ECL), generally at the pre-project MHWL, as the boundary between public and private ownership. The State, as trustee of submerged lands under the public trust doctrine, takes title to all newly created dry land seaward of the ECL. Upland littoral owners retain statutory rights of reasonable access to the water, view, and use, but they lose two incidents of common-law littoral ownership: direct contact with the water at the moving MHWL and the chance of future accretions shifting the boundary seaward. Walton County and the City of Destin obtained a permit from the Florida Department of Environmental Protection (DEP) to restore 6.9 miles of Gulf beach. Stop the Beach Renourishment, Inc., representing six beachfront owners, challenged the permit, claiming the project would take property by depriving them of littoral rights. The First District Court of Appeal agreed that the project would effect a taking. The Florida Supreme Court unanimously reversed, holding that, under Florida common law, littoral owners have no right to accretions against avulsive changes and that state-created additions of sand are treated as avulsive, leaving the boundary fixed; the Act therefore did not take property. The owners petitioned for certiorari, arguing that the Florida Supreme Court's reinterpretation of littoral rights itself effected a judicial taking. The U.S. Supreme Court granted certiorari and affirmed the Florida Supreme Court's judgment. Justice Stevens did not participate.
Can a state court decision that allegedly redefines established property rights constitute a judicial taking under the Fifth and Fourteenth Amendments, and, if so, did the Florida Supreme Court's decision upholding Florida's beach renourishment program effect such a taking of littoral rights?
No majority of the Court adopted a comprehensive judicial takings doctrine. A four-Justice plurality stated that the Takings Clause constrains all branches: a court commits a taking when it declares that what was once an established private property right no longer exists. Two Justices suggested that due process, rather than the Takings Clause, is the proper check on arbitrary or unpredictable judicial changes to property law. Applying settled principles of Florida property law, all Justices agreed there was no taking here: under Florida's avulsion doctrine, sudden changes to the shoreline—including state-created fill—do not move the boundary between private uplands and state-owned submerged lands, and the State may fix an Erosion Control Line and create public beach seaward of that line while preserving reasonable access for upland owners.
Affirmed. The Florida Supreme Court's decision did not effect a taking. Whether or not a judicial takings theory is valid, no established property right was eliminated because, under Florida law, the State's creation of new dry land seaward of the pre-project mean high-water line is treated as an avulsive event that does not shift private boundaries, and the Act preserves the core incidents of littoral ownership such as reasonable access.
Plurality (Scalia, joined by Roberts, Thomas, and in relevant parts Alito): The Takings Clause contains no textual exemption for courts; if a legislature or executive could not eliminate an established property right without compensation, neither can a court. The question thus becomes whether the Florida Supreme Court's decision erased an established right. It did not. Florida common law distinguishes between gradual accretion/reliction, which slowly move the boundary seaward or landward to the benefit or detriment of the littoral owner, and avulsion, a sudden change that leaves the boundary where it was. The State's placement of sand on its submerged lands to restore eroded beaches is an avulsive addition; title to the new land remains with the State, and private boundaries stay fixed at the pre-project MHWL. Florida precedent also subordinates the contingently expectant right to future accretions to the State's superior rights under the public trust and avulsion doctrines. The Beach and Shore Preservation Act largely codifies these principles and protects owners' core incidents of littoral ownership—reasonable access, view, and use—despite interposing state-owned dry sand between their uplands and the water. Because Florida law never guaranteed owners a right to maintain direct contact with the water or to acquire accretions resulting from avulsive changes, nothing 'established' was taken. Kennedy, joined by Sotomayor, concurred in part and in the judgment. He cautioned against embracing a judicial takings doctrine, which risks entanglement with federalism and separation-of-powers concerns. Instead, the Due Process Clause can safeguard against arbitrary or unpredictable judicial changes to property rules. On the merits, he agreed the Florida Supreme Court's decision was a reasonable application of longstanding state law and thus raised no due process concern. Breyer, joined by Ginsburg, concurred in the judgment. Emphasizing constitutional avoidance, he argued the case did not require addressing whether judicial takings exist. The record and briefing did not present a concrete necessity to resolve that novel question since the owners could not show that the Florida decision upset well-established property rights. Across the opinions, eight Justices (with Justice Stevens recused) agreed there was no compensable taking. The decisive analysis turned on the background principles of Florida property law—particularly the avulsion doctrine, the State's public trust in submerged lands, and the statutory preservation of reasonable littoral access.
The case leaves the existence and contours of a judicial takings doctrine unresolved while signaling that abrupt judicial redefinitions of property may face constitutional limits. Its practical teaching is twofold: first, background principles of state property law define the scope of protected property for takings purposes; second, littoral rights—especially accretion versus avulsion—are contingent and may yield to the State's public trust and coastal management powers. For students, Stop the Beach is a key bridge between property and constitutional law, a study in fractured Supreme Court reasoning, and a reminder to ground takings analysis in state-law definitions of property and in established common-law doctrines.
A judicial taking is the proposed idea that a court can violate the Takings Clause by declaring that what was previously an established private property right no longer exists. In Stop the Beach, a four-Justice plurality endorsed that concept, but no majority of the Court adopted it. Other Justices suggested that the Due Process Clause, not the Takings Clause, is the appropriate check on abrupt judicial changes to property law.
Littoral rights are the rights of owners whose land abuts navigable waters such as oceans, including reasonable access to the water, view, and the possibility of boundary changes through accretion (gradual addition) and reliction (gradual recession). Under Florida law, gradual accretion and reliction move the boundary, but avulsion—a sudden change, including state-created fill—does not. The State holds title to submerged lands under the public trust, may add sand seaward of the pre-project mean high-water line, and retains title to the new dry land; upland owners' boundaries remain fixed. Florida's statute preserves owners' reasonable access and other core incidents.
No binding majority held that. A four-Justice plurality would apply the Takings Clause to courts, but two Justices preferred due process as the constraint and two declined to address the issue. The only holding supported by a majority was that, on the merits, no taking occurred in this case.
Because, under settled Florida law, owners never had an absolute right to maintain water contact or to obtain accretions in the face of avulsive changes and state-created fill. The Beach and Shore Preservation Act codified those background principles and preserved reasonable access, so the Florida Supreme Court's decision did not extinguish any established property right. Without the elimination of an established property interest, there is no taking.
Accretion and reliction are gradual, natural processes that move property boundaries; avulsion is a sudden change (natural or artificial) that does not move boundaries. The State's beach renourishment was treated as avulsive, so private boundaries stayed fixed at the pre-project mean high-water line while the State took title to the new land created seaward of that line. This doctrinal distinction was central to the Court's conclusion that no established private right was taken.
Start by identifying the precise property interest under state law and any background principles that limit it. Consider whether the challenged action actually eliminates an established property right or merely regulates use. Recognize that fractured Supreme Court opinions may leave broader constitutional questions unresolved; where possible, resolve cases on narrower grounds grounded in state property doctrines before reaching novel federal theories.
Stop the Beach Renourishment resolved the immediate dispute by concluding that Florida's coastal restoration program, as interpreted by the Florida Supreme Court, did not take established littoral property rights. The decision turned on Florida's background property principles—especially the avulsion doctrine and the State's public trust authority—and the statute's preservation of reasonable access to navigable waters.
Doctrinally, the Court left open whether and how a judicial takings claim might succeed in a future case. The plurality's articulation of a judicial takings theory, the concurrences' focus on due process, and the overall emphasis on state-law definitions of property together provide a roadmap for future litigation and a rich teaching vehicle for understanding how constitutional protections for property interact with common-law doctrines and environmental governance.
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