Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection

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 and the mean high-water line, the average high tide line). In 1961, Florida’s Legislature passed the Beach and Shore Preservation Act. One a beach restoration is “determined to be undertaken,” an erosion-control line is set. It must be set by reference to the existing high-water line, but might be located seaward or landward of that.  The fixed erosion-control line replaces the fluctuating average high-water line as the boundary between privately owned littoral property and state property. Once the erosion-control line is recorded, the common law ceases to increase upland property by accretion or decrease it by erosion. Thus, when accretion to the shore moves the average high-water line seaward, the property of beachfront landowners is not extended to that line (as prior law provided), but remains bounded by the permanent erosion-control line. Those landowner “continue to be entitled,” however to all common-law-littoral rights, other than the rights to accretions. In 2003, the city of Destin and Walton County applied for permits to restore 6.9 miles of beach. The plaintiff, Stop the Beach, brought an, unsuccessful, administrative challenge against the project. After that challenge failed, Stop the Beach challenged the project in state court. The trial court ruled in their favor concluding that, contrary to the Act’s preservation of all common-law-riparian rights,” the order eliminated two littoral rights, the right to receive accretions to their property and the right to have the contact of their property with the water remain intact. The trial court determined this affected a ‘”taking” and required just compensation. The defendant, the Florida Supreme Court, rejected that ruling, and determined no taking had occurred. The Florida Supreme Court indicated accretions were not a vested property right, and held there is no littoral right to contract with the water independent of the littoral right to access, which the Act does not infringe. Stop the Beach sued, challenging that the Florida Supreme Court’s ruling itself amounted to a “taking.”