Judicial Takings Are the Recent Focus of an American Bar Association Panel

The 2010 annual meeting of the American Bar Association featured a panel discussion moderated by OCA member Robert Thomas, a Hawaii land use and appellate lawyer. The topic was the recent Supreme Court case, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection.

The litigation centered on whether the state of Florida’s efforts to repair storm-eroded beaches was an unconstitutional taking of the private owner’s coastal property because the repair/beach replenishment would cut off the property owner’s private beach access.

Mr. Thomas filed an amicus brief in this case on behalf of Owners’ Counsel of America to support OCA’s dedication to the rights of private property owners.

In his blog, Mr. Thomas indicates there is an additional issue in the case: whether a federal court can rule in a state judicial taking.

During the discussion, some important questions were posed:

Are there — or should there be — any federal constitutional limitations on the ability of state courts to define, or redefine, “background principles” of state property law?

Can the U.S. Supreme Court tell state supreme courts that those courts are wrong in saying what their own law is? If so, is that a chance in a view of federalism?

Why should private property owners be compensated for the state protecting their beachfront homes from storms and sea level rise by replenishing the beaches in front of their homes at public expense?

If you were advising a governmental entity, how would you counsel it in approaching beach preservation in the future? Should they get the statutes rewritten so as to require a judicial decision before the agency acts?

To continue the discussion of this important case, a follow-up teleconference is in the process of being scheduled. Keep monitoring the OCA site for details or subscribe here to receive notification.

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