Property II, Pages 941–954

Stop the Beach Renourishment, Inc. v. Florida Dept. of Envt'l Protection

Supreme Court of the United States, 2010


At common law, a littoral owner (one who owns land adjacent to the shore) has the right to his property being modified by accretions and relictions—the gradual accumulations and erosions by the water. If the change in shoreline happens suddenly, it is an avulsion and the littoral owner's boundary line remains where it was.


Florida's legislature passed the Beach and Shore Preservation Act, which allowed local governments to apply to the Florida Department of Environmental Protection to have it pay to have a beach restored. When restoring a beach, a board fixes the property line based on the existing property line before the land is extended. Thereafter, landowners are no longer entitled to increase their lands by accretion, but the board is required to maintain the water level below that line if asked. However, the government's use of the reclaimed land would "unreasonably infringe on riparian rights," the local governments must show that they have a property interest in the upland property adjacent to the project.

Petitioner's local government applied for and was awarded such a permit to drag sand up to the shore and thereby extend it out 75 feet further for 6.9 miles of the coast.

Procedural History:

  • District court found that the act constituted an unconstitutional taking, as it took took petitioners' rights to receive accretions to their properties and their rights to have their properties have contact with the water.

  • Florida Supreme Court reversed, finding that the doctrine of avulsion permitted the state to reclaim the restored beach on behalf of the public. It described the right to accretions as a future contingent interest, not a vested property right and held that there is no littoral right to contact with the water.


Did the restoration act constitute a taking?


  • Prior Florida precedent held that draining a lake was an avulsion that allowed the state to retain the land. So too, is this an avulsion and the state should retain ownership of the land. Because the government has not eliminated an "established property right," it has not taken the land from petitioners.

  • As Florida law is clear regarding avulsion, it would be contradictory to say that a littoral owner has a right to contact with the water.


No, the restoration act did not constitute a taking. Affirmed.

Concurring Opinions:

  • Kennedy: It should not be said that a judicial decision that eliminates an "established property right" constitutes a taking. Judicial power is limited here by the Due Process Clause. Unlike the Due Process Clause, the Takings Clause implies that the government has the power to take land. If this were applied to the judicial branch, judicial decisions could eliminate property rights as long as they compensated the aggrieved owners. Courts are not designed to have this power and granting them it would have unintended results. People are unlikely to bring federal takings claims, and reviewing courts might not even be able to reverse lower courts decisions. The Due Process Clause already adequately limits courts in this area.

  • Breyer: Allowing federal takings claims to be brought for judicial decisions would open the floodgates to this legislation, as every property owner who loses in state court would litigate to get it classified as a judicial taking. Therefore it should not be said that the Takings Clause applies to judicial decisions.