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Supreme Court rules new oceanfront land belongs to state

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WASHINGTON — A project to restore eroded beaches in the Florida Panhandle did not violate the Constitution’s takings clause even though the state claimed ownership of the strip of land the project created next to the ocean, the Supreme Court ruled Thursday.

The vote was 8-0 against property owners who challenged a ruling of the Florida Supreme Court that had, as they put it, turned oceanfront property into ocean-view property.

But the justices’ unanimity was superficial. They agreed on the proper result but were deeply divided about how to reach it.

Justice Antonin Scalia, writing for the court’s four-member conservative wing, would have used the case to establish the possibility of a “judicial taking” even as he said no such thing had happened here.

Four justices said it was unwise to reach the issue of whether courts, like the other two branches of government, are subject to the limitations in the takings clause of the Fifth Amendment (“nor shall private property be taken for public use, without just compensation”).

That group, too, split two ways, with Justice Anthony M. Kennedy, joined by Justice Sonia Sotomayor, suggesting that the due process clause might provide better protection for property rights threatened by court decisions.

Justice Stephen G. Breyer, joined by Justice Ruth Bader Ginsburg, said little more than that there was no unconstitutional taking here.

Justice John Paul Stevens did not participate in the decision and did not say why. He owns an apartment in a beachfront building in Fort Lauderdale, Fla.

Libertarian and business groups expressed disappointment with the outcome but welcomed Scalia’s analysis of the possibility of judicial takings.

“The part of the decision that was unanimously unfortunate turned on a narrow and probably mistaken interpretation of state property law,” Ilya Shapiro of the Cato Institute said in a statement.

Much more important, he continued, “the remainder of Justice Scalia’s opinion makes clear that judicial takings are just as much a violation of the Fifth Amendment as any other kind.”

Liberal groups, on the other hand, focused on the result and not the jurisprudential infighting.

“As the oil spill now ravaging our nation’s coastlines vividly demonstrates, it is crucially important that the government have the authority to step in to protect our beaches and coastal communities,” Doug Kendall, president of the Constitutional Accountability Center, said in a statement.

In the end, the case, Stop the Beach Renourishment v. Florida Department of Environmental Protection, No. 08-1151, turned on interpretation of Florida law. The state allows property owners to keep oceanfront land gained through gradual and imperceptible accretion but gives new land created suddenly to the owner of the seabed, which is typically the state.

The project at issue, all of the justices agreed, was in the second category.


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