RENEE MONTAGNE, host:
The U.S. Supreme Court hears a major property rights case, today, involving beaches. It pits the state of Florida, which is trying to prevent beach erosion, against private property owners who have beachfront property and want to keep the general public away. The question is whether a state law amounts to an unconstitutional taking of private property.
NPR legal affairs correspondent Nina Totenberg explains.
NINA TOTENBERG: At issue in the case, is the demarcation of what is private and what is public land at the water's edge, and the facts in the dispute are almost as amorphous as the line of dry beach in the sway of the tides.
Florida has the longest shoreline in the continental United States - over 2,000 miles - including some 820 miles of sandy beach; beach which has been consistently eroding. So much so, that for the last four decades, the state and local governments have poured millions of dollars into beach restoration projects that pump sand into eroded areas to create a kind of sand buffer to protect the beach from storm damage and further erosion.
With hurricanes frequently bashing parts of the state, these restoration programs were not only uncontroversial, but popular with home and business owners who literally saw the water lapping at their property. Michael Sole, the Florida secretary of environmental protection, says about half the state's beaches are in jeopardy.
Secretary MICHAEL SOLE (Florida Department of Environmental Protection): So, the issue is actually conducting beach restoration to maintain, not only the benefits of the beach from a recreational and tourism opportunity, but also for storm protection that's afforded to the upland homeowners.
TOTENBERG: Until the last decade, the Florida Panhandle did not suffer the same kind of hurricane and storm damage that the southern part of the state did. But state and local officials saw that changing in recent years and decided to spend a total of $15 million on a beach restoration project in Walton County � $4 million of it paid by the state, the rest paid for by the local community, including the town of Destin.
With that kind of money being spent to preserve the beach, the state set the property line for private beachfront property owners where it was when the project began � at the wet sandy beach. And if, because of the restoration, the dry beach extended farther out toward the water, that would be considered public property.
To some of the homeowners, like Slade Lindsey�
Mr. SLADE LINDSEY (Homeowner): It was simply a land grab.
TOTENBERG: Or, as he puts it, local and state officials were putting sand in his backyard and converting it to a public beach.
Mr. LINDSEY: We were angry that someone could come in and rewrite our deeds without our consent.
TOTENBERG: The state and local governments say they haven't rewritten anyone's deed. They say all they've done is make permanent the line of demarcation between private land and state land. Instead of the property owners' land moving with the tides, it's set where the wet sandy beach was. And if the restoration project creates a narrow strip of new dry beach, where there once was water, that now is public property, just as it was when it was underwater.
Deborah Flack is president of the Florida Shore and Beach Preservation Association, a league of coastal cities and towns.
Ms. DEBORAH FLACK (President, Florida Shore and Beach Preservation Association): This new area of beach was in fact created by state-owned sand, and it's being put on what was sovereign submerged state land at a significant cost to the taxpayer. So, clearly, we're talking about a recreational beach that should be open to the public.
TOTENBERG: The access rights of the private property owners are still protected, says the state. State law bars obscuring a homeowner's view, bars building any structure and guarantees the same water access. State law has always allowed the public to traverse private beach property along the shoreline, and the local government in Destin provides paths to the sea alongside Mr. Lindsey's property.
But Lindsey and five other homeowners are challenging the erosion restoration project as a taking of their land without just compensation. His property line, he concedes, is not much different than it ever was. On some days, the beach is bigger than it used to be, and on some days it's smaller. But, he says, he bought the property believing he, in essence, had a private beach and could rent his house as having a private beach. Now, he fears that undesirable members of the public may put their blankets down, picnic or whatever on any newly created strip of public beach.
Mr. LINDSEY: If it's state-owned land, we don't have the right, now, to tell them to go away.
TOTENBERG: The state's environmental secretary, Michael Sole, maintains that most of the landowners do not objected to beach erosion control projects because they enhance the value of the property, protect the roads and utilities around the property, and protect the state's number one industry, tourism.
Tropical Storm Ida this year proved the value of these projects, says Secretary Sole.
Sec. SOLE: Where we did beach restoration, we had hardly any damage. The beach actually served its purpose. Where we did not have beach restoration, we had significant damage. We had sea walls actually crumbling. So, it's clear that this beach, and these beaches, provide a significant value - not only to the upland homeowners, but more importantly, to the infrastructure that's there along the coast as a whole.
TOTENBERG: Homeowner Lindsey and his lawyer, D. Kent Safriet, contend that the real reason the state and local governments are interested in beach restoration is to create more public beaches for tourism. Kent Safriet:
Mr. D. KENT SAFRIET (Attorney): What they needed in this case, was to make a public beach open to the tourists for their economy.
TOTENBERG: And if the state and local governments want to do that, he says, they have to pay for the land.
Mr. SAFRIET: No one is saying they can or can't create the public beach, it's -they just got to do it the right way and pay for it.
TOTENBERG: But the Florida Supreme Court said the state did do it the right way � that landowners are asking for something they're not entitled to under state law.
Now, the case has been kicked up to the U.S. Supreme Court, where the question, in part, is whether a state court decision interpreting state law can amount to an unconstitutional taking of property.
It's a question that's never been resolved by the U.S. Supreme Court. Yes, the court said, a decision by the legislative or executive branch can amount to an unconstitutional taking; but whether a decision by the judicial branch can also amount to a taking is one of the great unanswered constitutional questions yet remaining in American law.
The Florida Supreme Court, in this case, said the beach restoration program reflected the state's constitutional duty to protect Florida beaches in a way that reasonably balances public and private interests. The court said that when new beach is created with a restoration project, landowners still have the same right to access and view the water. But the court said Florida common law has never provided the landowner a right to own, as private property, the emerging land.
Two dissenters accused the majority of butchering the state court's precedence. Now, the U.S. Supreme Court � including at least one justice who owns a vacation house on the water � will tackle the question. And the resulting decision could have implications for all the other coastal regions in the country.
Nina Totenberg, NPR News, Washington.
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