Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection – Oral Argument – December 02, 2009

Media for Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection

Audio Transcription for Opinion Announcement – June 17, 2010 in Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection

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John G. Roberts, Jr.:

I know.

We will hear argument this morning in Case 08-1151, Stop the Beach Renourishment v. The Florida Department of Environmental Protection.

D. Kent Safriet:

That’s–

John G. Roberts, Jr.:

I know.

Mr. Safriet.

D. Kent Safriet:

Mr. Chief Justice, and may it please the Court: Today we ask this Court to expressly recognize that a State court decision, unpredictable in terms of relevant precedents, which redefines century-old property rights to no longer exist, violates the Fifth Amendment of the United States Constitution.

The Florida Supreme Court suddenly and dramatically redefined littoral property rights, converting oceanfront property into oceanview property to avoid the finding of a taking.

It did so in the context of a beach restoration project which could have been accomplished without taking any private property at all.

Given this Court’s jurisprudence that a State’s legislative and executive branches cannot violate the Fifth Amendment, we see no reason why the judicial branch should be treated any differently.

Ruth Bader Ginsburg:

I thought your basic position in the litigation in Florida was that the Florida legislation violated the takings protection, and so it’s kind of strange to switch your target from the legislature, which enacted this measure, and then say, because the judiciary upheld it, the judiciary somehow is complicit in this violation by the legislature implemented by the administrative offices.

D. Kent Safriet:

That is correct, Your Honor.

Below, the case was litigated as one of a taking by the legislature when it passed the Act.

When it passed the Beach and Shore Preservation Act, it contained a provision within section 161.141, which is a savings clause, that said to the extent the beach restoration cannot be accomplished without taking property rights, the requesting authorities have to use eminent domain proceedings to take those rights.

At the First District Court of Appeal, they agreed with us that the littoral rights were being taken by the Act of the legislature and that those had to be compensated for.

When we arrived at the Florida Supreme Court, again, all of the parties were arguing those issues, whether there was a physical taking of these rights or a regulatory taking of these rights by the Act and whether the savings clause would apply.

To everybody’s shock, the Florida Supreme Court said: We’re going to go back to step one and decide you don’t have any littoral rights.

The legislature didn’t eliminate any protected littoral rights that you thought you once had for over a hundred years as the relevant precedents in common law indicate.

So it was that decision of the Florida Supreme Court, that said you have — no longer have property, that gives rise to the issue before this Court is, can the Florida Supreme Court redefine those 100-year-old rights to no longer exist?

Ruth Bader Ginsburg:

Applied in a new situation.

It was never the kind of situation involved here with the beach restoration project.

The — the precedent did not involve the kind of situation that this case presents.

D. Kent Safriet:

Yes, Your Honor.

There is no precedent with respect to the Beach and Shore Preservation Act as it has ever been applied.

We do concede that.

However, there are two fundamental principles of Florida law that have existed for more than a hundred years, and those are property that must — property that borders the mean high-water line and must remain in contact with the mean high-water line to possess common law littoral rights.

If that connection is not there, there are no common law littoral rights.

Common law littoral rights are constitutionally protected and cannot be taken without due process and just compensation.

Antonin Scalia:

Well, they’re — they’re eliminated — at least the right of contact with the water can be eliminated by an avulsion, right?

When there’s — when there’s avulsion, even at common law and under Florida law, it — it can happen that some land between the property owner and — and the water will be owned by the State.

D. Kent Safriet:

That is correct, Your Honor.

D. Kent Safriet:

Under the–

Antonin Scalia:

Well, why wasn’t this an avulsion?

D. Kent Safriet:

–Well, because the avulsion in this case, Your Honor, was the hurricanes that the State cites as the reason for the beaches being washed away, and — and it was–

Antonin Scalia:

Well, well, well, well.

There were — there were two avulsions.

One was the avulsion of its being washed away and the other was the — the rapid replacement of sand.

That — that is not a natural, gradual phenomenon.

D. Kent Safriet:

–That is right, Your Honor, but the — there is no case law in Florida or no principle that says avulsion can occur by artificial means.

So there is — the beach restoration, where they placed sand on the beach, is not avulsion.

Antonin Scalia:

If there’s no case law, it seems to me you’ve lost your case.

D. Kent Safriet:

No, the case law specifically says that avulsion is a result of natural occurrences, by the action of the wind and the water.

That’s what avulsion is in Florida and has been — you know, for at least 50 years, I believe.

It’s–

Stephen G. Breyer:

They have a new situation.

It’s sort of like an avulsion.

It’s sort of like an accretion.

The only precedent of — you keep talking about a hundred years — it seemed to me some dictum in a case called Sand Key, which does say that the upland property owner has the right to touch the water.

So in this case, the Florida Supreme Court says the purpose of that was to make certain that the upland property owner could go to the water.

And so here we have a case that assures he can go to the water, and they have a new situation, which, as I think Justice Scalia said, looks an awful lot like an avulsion, though of course there are differences.

So it sounds like a typical common law situation.

A new situation arises.

You try to apply old precedent, and they reached the result they did.

Now, what’s your response to that?

Because that’s the argument the other side makes.

D. Kent Safriet:

–The response to that, Your Honor, is the doctrine of avulsion — as part of the doctrine of avulsion is the doctrine — or the right to reclaim what was lost by the landowner.

So when an avulsion event occurs, the landowner that has lost property has a right under common law to reclaim what they lost.

Stephen G. Breyer:

You didn’t lose any.

It just went out the front door there.

The land ended here, and the new avulsion comes in and extends it further.

You didn’t lose one inch.

Stephen G. Breyer:

All you lost was the right to touch the water.

But the court here says you in effect have that right because you can walk right over it and get to the water.

D. Kent Safriet:

What — what was lost in this case, Your Honor, is the right to contact the mean high — water line, and I think there’s a distinction between the right to contact the mean high-water line and the water’s edge.

The Florida Supreme Court didn’t address the former issue, contact with the mean high-water line.

Stephen G. Breyer:

Don’t you have a right to walk across and put your boat in the water and swim, and nobody can stop you?

D. Kent Safriet:

–Right.

Across the foreshore, yes, Your Honor.

And also, as part of the common law rights of access–

Stephen G. Breyer:

Now you have that right.

They didn’t take that away from you.

The statute gives it to you.

D. Kent Safriet:

–That’s correct.

We have that right–

John G. Roberts, Jr.:

If somebody wanted to put up a hot dog stand on this new land, would you have the right to tell them they can’t?

D. Kent Safriet:

–Absolutely not, Your Honor, and that’s the point I was getting to.

Stephen G. Breyer:

You say “absolutely not”.

I thought there was a provision in this law that said they cannot put anything on that strip which destroys your right of enjoyment of the upland right.

Now, if they put a noisy hot dog stand that keeps you up at night, doesn’t that violate the statute?

D. Kent Safriet:

I think the statute provides no permanent structures can be constructed on that new property.

Stephen G. Breyer:

It doesn’t say anything about your right to peaceful enjoyment?

D. Kent Safriet:

It certainly does.

Stephen G. Breyer:

And what does it say?

D. Kent Safriet:

It says that the — you know, your regular common law uses that cannot be–

Stephen G. Breyer:

So what does the statute say about your right to have peaceful enjoyment of your land?

Antonin Scalia:

Well, you can have quiet hot dog stands during the daytime.

[Laughter]

D. Kent Safriet:

–Yes.

Yes.

It’s says no uses of that property can be injurious to the common law–

Stephen G. Breyer:

Injurious, okay.

John G. Roberts, Jr.:

But do you have any–

D. Kent Safriet:

–Of course, now–

John G. Roberts, Jr.:

–Do you have any reason to suppose that that’s a redefinition of — of property that the legislature isn’t free to change tomorrow?

D. Kent Safriet:

–Yes, the legislature can change this definition of property.

They can define property in the State of Florida as to whatever they want it to be, but if they do so and take property, they must pay for it under the just compensation clause–

Sonia Sotomayor:

Counsel, before this legislation, in the seaward side of the land that belonged to the State, from the mean high-water mark, a hot dog stand could have sat in the water, correct?

D. Kent Safriet:

–If somebody wanted to put one in the water, yes, Your Honor.

Sonia Sotomayor:

And someone could have stood there, a boat could have docked there, assuming that it — it was a shallow boat.

You had no control over anyone placing anything on the seaside submerged lands that belonged to the State, outside of whatever regulations the State decided it wanted to impose?

D. Kent Safriet:

We had no exclusive right to exclude them from that property.

But they could not unnecessarily interfere with our right to view or our–

Sonia Sotomayor:

The ECL that has been created by this legislation — you gave up any challenge to it — it was established at that mean water mark, wasn’t it?

D. Kent Safriet:

–Yes.

The ECL in this case, as the case was litigated, was assumed to be located directly on top of the mean high-water line.

We did not abandon a challenge to the ECL.

What we abandoned was any challenge as to where the ECL was placed in relation to–

Sonia Sotomayor:

So, right now, we just have to assume that it was — that it — it has established the line at a point where the State owns all the land seaward of the ECL, correct?

D. Kent Safriet:

–Yes, Your Honor.

Sonia Sotomayor:

So after this project finishes, that hot water — that hot dog vendor will be on stateside land, correct?

D. Kent Safriet:

That is correct, Your Honor.

Sonia Sotomayor:

No different than what exists today, before the legislation, which is if the hot dog vendor wanted to sit in a foot of water, it could have?

D. Kent Safriet:

It certainly could sit in a foot of water.

Sonia Sotomayor:

All right.

So none of your actual use rights, pleasure rights, or anything else has been changed.

What you’re arguing is that — and what the Florida State Supreme Court described as the contingent future possibility that the high-water mark might change and you could push that hot dog vendor back another foot or two.

D. Kent Safriet:

That is correct, Your Honor.

Anybody allowed–

Antonin Scalia:

Of course, such — such boats floating in — in the water below the mean highwater mark are available with respect to all littoral properties.

Isn’t that right?

D. Kent Safriet:

–That is right, Your Honor.

Antonin Scalia:

But what can’t happen with other littoral property is that folks can’t come in and lay down beach blankets and occupy that sand, right, so that you have open sand in front of — in front of your house?

D. Kent Safriet:

That is correct, Your Honor.

The–

Antonin Scalia:

And people pay a lot more money for beach — beachfront homes, for that reason, don’t they?

D. Kent Safriet:

–Absolutely, Your Honor.

The value of beachfront property is a premium.

Antonin Scalia:

And that’s quite different from having a house behind the beach at Coney Island, isn’t it?

D. Kent Safriet:

Absolutely, Your Honor.

And in this case–

Ruth Bader Ginsburg:

Well, can you — can you explain something that’s unclear to me from the briefs and the records?

That is, there — this — what is referred to as “the foreshore”, was that wet all the time?

I thought the suggestion was that that was in effect beach, public beach, that people could walk on, not swim in.

D. Kent Safriet:

–The foreshore, Your Honor, is typically the land area between the mean high-water line and the low high-water line, and depending on the tide cycles of the day, some of that foreshore is dry, and then at other times–

Ruth Bader Ginsburg:

And the — and the public — what — what was the situation here?

Was there a strip of dry land that the public has been using?

D. Kent Safriet:

–There’s — the foreshore, Your Honor, which is periodically dry on any given day and periodically wet — the public can use that, and they have always been able to use that.

That is State-owned land, and they can use that to traverse up and down the beach.

But, again, because it’s wet every day, you don’t have hot dog vendors putting hot dog stands in the water.

You don’t have people laying their blankets in the water to enjoy that beach.

And what we’re talking about here is the exclusive right to use the dry sand area that stays dry all of the time in our case, which in our case was a 200-foot stretch of beach before this project began, and we had 200 feet of beach, and we had the right to exclude commercial vendors or anybody else from that property.

Now what we have after that, according to this project, is another 80 feet to 100 feet of dry sand beach owned by the State where the landowners have no ability to exclude commercial vendors or any other obnoxious uses of that property–

Ruth Bader Ginsburg:

Who owns that land?

I mean, when it was submerged it belonged to the State.

And is it your position that the owners in your organization, that they have title to that land that was once owned by the State?

D. Kent Safriet:

–Absolutely not, Your Honor.

It’s our position that the State, as a matter of public use under the Takings Clause, can condemn that property and make a public beach in front of a private one.

They absolutely can do that.

Ruth Bader Ginsburg:

No, I mean — I mean, without condemning it, you say the title is held by the private owners even though the title was held by the State when the land was submerged.

D. Kent Safriet:

No, Your Honor, I’m not saying that the landowners own that new 80-foot stretch of beach now, as it currently exists.

What we argue is we own to the erosion control line, which is the property boundary that the State created in this case.

D. Kent Safriet:

And the State, by operation of the Act, claims title to the new 80-foot strip of beach.

And what we’re trying to obtain here is the State to go through eminent domain proceedings to pay us compensation for the loss of littoral rights that they’re taking by creating this public strip of beach.

Now, the State may at the end of the day say, well, we’re not going to claim title to that; we’re going to reinstate your boundary as the mean high-water line — that would be 80 feet further out — and no compensation, in that case, would be due.

But–

John G. Roberts, Jr.:

It would be — what would your position be, assuming you still have title, you still have the right of littoral title, contact with the water?

Would you concede that the State has different regulatory interests with respect to that new strip of land versus the old strip of land?

It’s still your property.

The State can regulate your property.

Presumably, they regulate your beach property now.

Would their different — would their authority to regulate be greater with respect to the new area?

D. Kent Safriet:

–As the owner of the property, Your Honor?

If the State owned that property?

John G. Roberts, Jr.:

No.

Your — you would still have the title to the property.

D. Kent Safriet:

Okay.

John G. Roberts, Jr.:

It’s still your property.

You know, the State regulates property all the time, in zoning — would their authority be broader with respect to that new land than with respect to the old?

D. Kent Safriet:

No, Your Honor, I don’t think so.

The State already has broad authority to regulate property already, and then would — I wouldn’t see any need for them to have any broader authority for that new strip of beach if our members owned it.

John G. Roberts, Jr.:

Sometimes — and I don’t actually know what the law is on this.

Sometimes the State builds, you know, sidewalks in front of people.

Maybe they do it on their own land, and they say: We’re putting this easement, and people can walk across it.

Would this be in the same category of public project?

They say, well, it’s your land because you have a right to the mean high-water land, but we built it so we have greater rights with respect to regulation than we might have with respect to the natural beach.

D. Kent Safriet:

No, Your Honor, I don’t think they would have any greater rights to that.

I mean, if — if the landowners are the fee-simple title owner, then the State has its basic police powers to regulate as it would any other land, absent some type of easement or reservation of our agreement with the landowners that give them greater rights and–

Antonin Scalia:

The State gave you some quid pro quo for this, which is to say this new sand is projected to last 6 years, has to be replaced regularly, because your — your property is being eroded, which is the reason the State went into this.

And what the State has given you in exchange is that if and when there is further erosion, you will continue to own up to whatever this new line is called.

D. Kent Safriet:

–ECL.

Antonin Scalia:

The ECL.

Antonin Scalia:

You will continue to — to own up to there, despite the fact that under common law when there’s more erosion, your — your line would recede to the new mean high-water mark.

So, you know, who — who knows?

Maybe that’s sufficient compensation.

You know, if you go in and ask for compensation, the State might say, you know, we’ve given them — given them this property right in exchange, and the difference between that and what they have now is two dollars.

D. Kent Safriet:

That — that may well be the case, Your Honor, but, again, they haven’t provided us the opportunity to go to that trial, that jury trial, to argue that these — the value of this new 75-foot stretch of beach on top of the 200-foot stretch of beach provides value above and beyond the taking of the–

Anthony M. Kennedy:

Let me ask you this question on Florida valuation.

Assume you prevail, there’s a cause of action for a taking.

You have a beachfront area, beachfront home, in which there’s a hurricane and there’s a loss of the beach and a sudden drop, so that it’s now a 60-foot — a 60-foot drop.

The State comes in and says the only way we can fix this is to extend the beach and make it a larger beach on what was formerly our submerged land.

And it does that that.

Under — and it — and it has the same rule.

Under your view, is the State required to pay you for the loss of your right of contact to the beach, your littoral right, because there’s let’s say another 100 foot of new beach?

Are they entitled to offset that against the enhanced value to your property by reason of the fact that they’ve saved it from further erosion and have given you a beach where there was none before?

D. Kent Safriet:

–Yes, Your Honor, they are able to offset that, and the — the statute provides for that offsetting such that in an eminent domain proceedings whatever value the landowners lost as a result of their — losing their contact with the mean high-water line, that any benefit provided by the additional sand would be offset–

Anthony M. Kennedy:

So the enhancement from the post-project benefit is a credit to the State in the takings action?

D. Kent Safriet:

–That — that is according to the statute that was passed, Your Honor.

Antonin Scalia:

Did any of these beachfront owners think this was a good deal, that the State has prevented further erosion of their land and, you know, the price they pay for that is that they have this 60-foot stretch that — that the public can use, and that may wash away in 6 years anyway, and if they’re lucky the State won’t have enough money to put it back?

Or —-

[Laughter]

Did anybody — I’m not sure it’s a bad deal.

And they’re guaranteed against — against further loss of property because they will continue to own up to that — to that new line, even if it’s all covered by water.

D. Kent Safriet:

No, Your Honor.

Our–

Antonin Scalia:

Nobody — nobody thought it was a good deal?

Everybody thought that they had been done out of something?

D. Kent Safriet:

–With respect to the Petitioner’s members, they thought it was a bad deal, Your Honor.

Antonin Scalia:

Petitioner’s members, but other people along — along the same coast?

I mean, if I had a place and it’s being — it’s being eroded by hurricanes constantly, you know, I — I’m not sure whether I wouldn’t — wouldn’t want to have the sand replaced, even at the — at the cost of having a 60-foot stretch that the State owns.

D. Kent Safriet:

I think that’s the fundamental misunderstanding in this case.

The beach was not eroding.

D. Kent Safriet:

It was not lapping under these houses.

There was 200 feet of dry beach, and the beach is accreting, meaning it grows gradually, day by day or week by week–

Ruth Bader Ginsburg:

But what happened?

There were a succession of hurricanes, I thought.

D. Kent Safriet:

–With the exception of hurricanes.

But hurricanes are, again, avulsive events that don’t change the property boundary line.

We talked about the right to reclaim earlier.

So this is an a accreting beach, 200-foot accreting beach.

These property owners did not view that they were gaining anything–

Antonin Scalia:

It may not change the property line, but all of your property might be under water–

[Laughter]

–right?

That wouldn’t be very good.

D. Kent Safriet:

–That’s a risk that they — Petitioner’s members — were willing to take.

They bought oceanfront property.

Antonin Scalia:

Well, your members were, but I was asking whether some other people might not have thought it was a pretty good deal.

D. Kent Safriet:

Sure.

Sure, Your Honor, there are a lot of properties, probably even in this stretch, where water is lapping under the houses, and the — and the landowners will want sand, and they’ll be willing to waive any types of property rights claims or compensation claims to get that sand.

But that’s not what happened–

John G. Roberts, Jr.:

Could the State–

D. Kent Safriet:

–in this case.

John G. Roberts, Jr.:

–Could the State sell this new land to somebody else?

D. Kent Safriet:

Yes.

There’s no reason they couldn’t, because they own the fee-simple title to it, as well as they could send the sovereign submerged lands in front of the property.

Anthony M. Kennedy:

But it would be subject to the easement that the State acknowledges you have, which is the easement of access?

D. Kent Safriet:

I’m not sure it would be, Your Honor.

The statute provides that right of access–

Anthony M. Kennedy:

Well, but the — the–

D. Kent Safriet:

–so basically it’s not an easement per se that inheres in our title.

Anthony M. Kennedy:

–No, no.

Anthony M. Kennedy:

As I understand the supreme court’s opinions, you have several special and exclusive — or exclusive — or exclusive, common law littoral rights: right to have access, right to reasonable use of the water, right to accretion and reliction, right to the unobstructed view.

They can’t sell that.

D. Kent Safriet:

Yes, but we don’t have common law rights anymore, Your Honor, because we don’t–

Anthony M. Kennedy:

No, no.

D. Kent Safriet:

–contact the mean high-water line.

Anthony M. Kennedy:

The — the hypothetical is the State says that the property owner, the upland owner, has these rights.

The Chief Justice asked you, could this property be sold?

I think the answer would be yes, but it would be subject to the continuance of that easement in the dominant estate.

That has to be the answer under the supreme court’s opinion.

Now, you may not agree with that.

D. Kent Safriet:

Under the supreme court’s opinion, yes, because it purports to reserve common law rights across this new stretch of State-owned beach.

It’s our contention that all common law rights have been lost when we lose connection to the mean high-water line.

Anthony M. Kennedy:

All right.

That gets to the question, if we agree with you that there is such a thing as a judicial takings, what is the standard by which we decide when the Federal courts can and must intervene to disagree with the — with the State law and to characterize it as a taking when the State has said that it is not?

Would we just find all sorts of adjectives — it’s sudden, unexpected, unfounded — we just have a string of adjectives, sort of like an adequate independent State ground rule or something?

D. Kent Safriet:

Yes, Your Honor, that would be the test that we would suggest, as Justice Stewart noted in his concurring opinion in Hughes.

And the test we would propose is that a judicial taking occurs when a State court effects a sudden and dramatic change in State law, unpredictable in terms of relevant precedents, that have no fair or substantial support in well-established background principles of State law.

Anthony M. Kennedy:

Okay, I’m familiar with that opinion.

Now, in this case, number one, it seems to me that in order to do that, we have to become real experts in Florida law.

Number two, once we do that it seems to me that this opinion really addresses something that’s — that’s new, and it’s — it’s grounded in common law doctrines.

It’s a close case.

It might have gone either way.

Let’s assume that.

Does there have to be some finding that the State decision is clearly unreasonable?

I mean, if it’s a close case, does the State win under your test?

D. Kent Safriet:

Your Honor, I think the test-again, the fair and substantial support — provides adequate deference to the State court.

And in objectively reviewing the precedents, this Court doesn’t have to become an expert in State law.

It merely has to review those precedents to make sure that the Florida Supreme Court in fact relied on background principles of law rather than creating nonexistent rules of State substantive law–

Anthony M. Kennedy:

Well, it seems to me that, reading the opinion, I — I can get there.

There was some talk about the Belvedere case as helping you.

Anthony M. Kennedy:

I thought it did not at all.

That was a very odd case where the easement is wholly separated from the dominant.

It’s the reverse.

They take the main property and leave the easement, rather than vice versa.

So I just thought that was irrelevant.

D. Kent Safriet:

–Yes, the case law, Your Honor, and the incremental changes that we are dealing with here that would be part of your test is the government or the State can gradually change these property rights or property laws so long as they leave the owner with the rights.

And in this case what the Florida Supreme Court has done is said: We’re not just gradually changing them and leaving you with these common law littoral–

Anthony M. Kennedy:

The State can do an accretion–

D. Kent Safriet:

–we’re taking them.

Anthony M. Kennedy:

–but not an avulsion?

D. Kent Safriet:

Right.

We’re taking them.

What the Petitioner’s members possessed, the State now possesses.

Antonin Scalia:

I thought Martin was — the Martin case was — was pretty close, the lake that — that the State lowered.

D. Kent Safriet:

Yes, the Martin v. Busch case.

That–

Antonin Scalia:

Right.

D. Kent Safriet:

–That case, ironically, has — has been relied upon by the State at the Florida Supreme Court level.

Antonin Scalia:

Did the — did the Florida Supreme Court cite it?

D. Kent Safriet:

Absolutely not, Your Honor.

Antonin Scalia:

Isn’t that weird?

Why didn’t they cite it?

D. Kent Safriet:

It’s not weird, because in 1987 in the Sand Key case, the Florida Supreme Court said that the proposition that the State has cited that case for was not the issue there in that case.

It said that case dealt with a property boundary dispute.

It didn’t deal even deal with the doctrine of avulsion or reliction or accretion.

Antonin Scalia:

Do you think that’s true?

D. Kent Safriet:

I’m sorry, Your Honor?

Antonin Scalia:

I know they said that.

Do you think that’s true?

When I read it, it seemed to me to deal with reliction precisely.

D. Kent Safriet:

I do think that’s true, because the majority in Sand Key said that it dealt with them.

[Laughter]

If there are no further questions, I’d like to reserve my time for rebuttal.

Antonin Scalia:

A good lawyerly response.

D. Kent Safriet:

Thank you.

[Laughter]

John G. Roberts, Jr.:

Thank you.

Thank you, Mr. Safriet.

Mr. Makar.

Petitioner Scott D Makar:

Mr. Chief Justice, and may it the Court: Let me go ahead and address some issues that have come up about Florida law.

Number one, this idea of artificial avulsion that was discussed earlier, the Bryant v. Peppe case, which cites the Martin — that was discussed in the Martin case, talks about when the State comes in on its own property and either lowers the water or, in this case, puts sand on the — on the State side of the property line, that that’s an artificial avulsion, the State retains title to its State lands, the upland owner, the private property owner retains ownership of their land.

John G. Roberts, Jr.:

I suppose it depends on — or maybe not — how quickly it all happens.

I mean, if the State project is such that they add a foot a year, is that an avulsion or accretion?

Petitioner Scott D Makar:

Well, it would be an avulsion.

It would still be the State adding sand to its side of the line.

John G. Roberts, Jr.:

Well, is your view whenever the State does it, it’s an avulsion?

Petitioner Scott D Makar:

If it’s on — if it’s on its property, that’s absolutely the case.

Antonin Scalia:

Why is that?

I thought avulsion by definition is a sudden change.

Petitioner Scott D Makar:

No, no.

Under, Florida Law the Bryant v. Peppe case, which was an avulsion case that arose out of a hurricane, where there was land that was previously submerged, it came up, it was over State property, the private owners wanted to get the — get it, and they asserted that it was theirs in accretion, and the court said no, and it cited to Martin.

There’s no right to having contact with the water.

Antonin Scalia:

Why — you’re — we’re wandering off the point.

Why wasn’t it an avulsion?

It was an avulsion in that case, wasn’t it, because it was sudden?

Petitioner Scott D Makar:

But it was done by the State.

I’m sorry, maybe I’m confusing cases.

Antonin Scalia:

Is — is–

Petitioner Scott D Makar:

Martin–

Antonin Scalia:

–You have a case for the proposition that an — what would otherwise be an avulsion is an accretion if it’s done by the State?

Petitioner Scott D Makar:

–Oh, no, no, no.

Antonin Scalia:

Or vice versa.

What would otherwise be an accretion is an avulsion if done by the State?

Petitioner Scott D Makar:

No, no, no.

An — an accretion would have to be a sudden, imperceptible change in the shore line.

Antonin Scalia:

Right.

Petitioner Scott D Makar:

When the State adds to its side of the line, adds sand in this case, that’s not a gradual, imperceptible–

John G. Roberts, Jr.:

No, no.

My — my questions was what if it is?

Antonin Scalia:

What if it is?

John G. Roberts, Jr.:

I don’t recall how quickly things happened here.

Petitioner Scott D Makar:

–Oh, well, sure.

No, it’s–

John G. Roberts, Jr.:

But if it’s — if it’s gradual, even though the State is doing it, it can be an accretion, right?

Petitioner Scott D Makar:

–Well, if it’s gradual and perceptible–

John G. Roberts, Jr.:

Yes.

Petitioner Scott D Makar:

–the answer would be yes.

John G. Roberts, Jr.:

It’s a foot a year.

Petitioner Scott D Makar:

It would be yes.

And if the State came in and took that property, yes.

The 100 years–

John G. Roberts, Jr.:

So, on these facts–

Petitioner Scott D Makar:

–On these facts–

John G. Roberts, Jr.:

–On these facts, if the State’s project added sand at a foot a year, the landowner would win?

Petitioner Scott D Makar:

–I would disagree with that, because what — that is not a gradual imperceptible change.

It’s a — water.

John G. Roberts, Jr.:

A foot — are we dickering over the distance?

Petitioner Scott D Makar:

We are, I think, because in this case what happened–

John G. Roberts, Jr.:

Well, then, wherever you want to say it’s an accretion — what — it’s an inch, 6 inches–

Petitioner Scott D Makar:

–Well, that’s — but that’s not the way it is under — under Florida law, if the State comes in on its own property and adds to it, as it did in Martin, where it lowered the — the water or in this case where they added the sand, it — the State retains the right to it.

Petitioner Scott D Makar:

The upland owner doesn’t get it.

It’s–

Samuel A. Alito, Jr.:

And why isn’t it a fundamental–

John G. Roberts, Jr.:

–So, you’re–

Samuel A. Alito, Jr.:

–Why isn’t it a fundamental change in Florida property law to extend these concepts of accretion and avulsion to things that are done by the State?

If someone owns beachfront property, they accept — they — they understand the risk that a hurricane may cause avulsion, a hurricane may knock down their house.

Does that mean the State could come in and knock down the house and say this is an artificial avulsion?

Petitioner Scott D Makar:

–No, absolutely–

[Laughter]

No, absolutely not.

I mean, what the State did here is it — 40 years ago, was to–

Samuel A. Alito, Jr.:

Well, what’s the difference?

You’re taking a concept that has to do with a risk that you bear because of the — the vagaries of — of the weather and storms, and you’re applying it to something that’s done by the State.

Petitioner Scott D Makar:

–Well, maybe we’re on Mars and Venus here because we’re talking about a label.

We’re talking about the State’s–

Samuel A. Alito, Jr.:

Yes, talking about a label, and putting the avulsion label and the accretion label on something that the State does, doesn’t — doesn’t eliminate the fact that there’s been a fundamental change.

You have taken a doctrine that applies to things that occur as a result of nature and you’ve applied it to things that are produced by the State.

Petitioner Scott D Makar:

–Well, there’s no question under Florida law that the State has the right on its sovereignty lands to control those lands and use those for the public trust.

And what the Florida legislature did 40 years ago — keeping in mind this has been on the books 40 years, 200 miles of beaches have been restored over those years, and no one has complained that this is a taking of property.

That — it’s a reasoned response for the Florida Supreme Court to come in and say, okay, they’re challenging the Act.

They say it denies them two things: the right to future accretion and the right to have contact with the water.

Martin v. Busch and Bryant v. Peppe say, look, if — you don’t have a right of contact with the water, if you have avulsion or if you have it in — in Martin, it was a State drainage project.

John G. Roberts, Jr.:

–If I can — we’re arguing about the application of a doctrine to this case.

I’d like to step back if I can and talk about the doctrine through a hypothetical, if that’s all right.

Petitioner Scott D Makar:

Sure.

John G. Roberts, Jr.:

The — the — let’s say the legislature passes an act saying the boundary of beachfront property is now where the sand starts, and not the mean high-water mark but the mean high-sand mark.

All right?

And — and then — so that’s sued.

You — you sue under that, and the court says: Yes, of course, that’s a taking; our precedents have always said it’s the mean high-water line and nothing else.

Florida has judicial elections.

John G. Roberts, Jr.:

Say, somebody runs for election for the Florida Supreme Court and says: I’m going to change that law.

I’m going to say that it is not a taking.

I think people should be able to walk right up to the land.

And that person is elected, and the law is changed.

Now, is — is that a judicial taking?

Petitioner Scott D Makar:

I think under the scenario you’re posing that’s a possibility.

That’s where the–

John G. Roberts, Jr.:

Is it a possibility or is it a clear case?

Petitioner Scott D Makar:

–Well, I think it would — if it — if it’s — it sounds like this is the Cannon Beach situation, where the court judicially said, okay, you don’t own to the mean high-water line; now you own up — only up to the vegetation line.

Or something along those lines where it was an ouster.

Here there’s no ouster of property rights.

John G. Roberts, Jr.:

No, no.

You’re changing–

Petitioner Scott D Makar:

Right.

John G. Roberts, Jr.:

–I understand you have a different view about here.

But under my hypothetical, would you agree that the action of the Florida Supreme Court is a taking?

Petitioner Scott D Makar:

Yes, I would — I would countenance that — that here we have a far different situation, which we have an act of the legislature that draws this line, and that the two attributes that they are claiming have no basis whatsoever in background principles of Florida law.

There is no case they can point to, to say that we have a right of contact–

Stephen G. Breyer:

Well, what they say is the following — this is what they say, I think: They point to a case called Sand Key, and in Sand Key it says littoral property rights include the following vested rights: One, the right of access to the water, including the right to have the property’s contact with the water remain intact.

That’s what the court said.

And in the court’s opinion what it says about that is it says, in this case, the Act expressly protects the right of access to the water, which is the sole justification for the subsidiary right of contact.

So what they’re doing is their reading what they said in Sand Key, and they’re asking why was it there in Sand Key, and that’s what they come up with.

Now, after this sentence I just read you, there is no citation.

So I want you to add anything you would like to say why this is, that sentence I read you, justifiable under Florida law.

Petitioner Scott D Makar:

–Well, you’re talking about the legislation.

Stephen G. Breyer:

No–

Petitioner Scott D Makar:

I’m talking about the Sand Key–

Stephen G. Breyer:

–I’m giving you what I took was — I don’t want to characterize the answer.

I might have found it sufficient, others might not have.

I don’t know.

Stephen G. Breyer:

I’m saying they point to Sand Key.

I’ve read you what I thought was the answer.

Petitioner Scott D Makar:

–Oh, sure.

Stephen G. Breyer:

Tell me if I’m right, and if I am right, that that is meant to be the answer, justify it, if you can.

Petitioner Scott D Makar:

Sure.

What they’re citing to is some dicta in Sand Key that had nothing to do with the holding of that case, and if you try to go back and look at the citations to the cases that Sand Key cites for that proposition of contact with the water, none of them have to do with contact with water.

Instead, the most important point is to look at Martin v. Busch, which was a case where the State lowered the water in a lake, the upland owners at — the property line was determined not to have moved, they didn’t have any contact with the water any longer, and the submerged sovereignty lands became the State’s property.

There’s no right of contact there.

It’s–

Antonin Scalia:

Sand Key’s statement strikes one as — as correct simply because I think that’s — that’s the view of the common law.

I — I don’t think that’s unique or distinctive to Florida.

I think it would be very strange to have a principle that all the — all the littoral owner gets is a right to access the water and not the right to be on the water, to have his property on the water.

I think — I think in every State, beachfront owners would be astounded to learn that that’s the case.

So, I — you know, I thought that Sand Key was just expressing what — what was the common law.

And the notion that — that the only purpose of the contact with the water is so that you can have access, that is — is that not silly?

Petitioner Scott D Makar:

–No.

Well, two points here I would like to make.

Number one, let’s assume there was an avulsive event that added sand on the State’s property along the beach line, so now we have the property line not changing, it’s exactly where it was before, but now we have, say, 75 feet of sand, new sand seaward, over the State’s property.

That’s the State’s property–

John G. Roberts, Jr.:

But that’s not the question.

I mean, you just said that, let’s assume the — assuming the property line doesn’t change.

The other side is saying the property line is the mean high-water line, and so if you — whoever adds sand, the State, mother nature, you dumping it — I guess you can’t do that, but whoever adds it, the property line is the mean high-water line–

Petitioner Scott D Makar:

–But — but — well — but under this avulsive event where there is sand added seaward, the contact by the upland owner with the water no longer exists, and that’s been on the books in Florida for–

John G. Roberts, Jr.:

–Yes, but that’s because you think the property line is the ECL rather than the MHWL.

Petitioner Scott D Makar:

–I’m sorry, Mr. Chief Justice.

What I’m talking about is put the Act aside and just say at common law in Florida.

If the sand is added through avulsive events, the upland owner has no contact with the water any longer.

They certainly have access.

And the Florida Act is so solicitous of protecting the property rights of riparian ownership.

You go through the statute, and you see they preserve common law littoral — littoral rights.

Petitioner Scott D Makar:

They have a section–

Antonin Scalia:

Would that person still be considered a littoral owner?

Petitioner Scott D Makar:

–That was my second point.

Antonin Scalia:

After there has been the avulsive event that separates him from the ocean by 60 feet of State-owned land, would he still be a — a riparian owner?

I thought–

Petitioner Scott D Makar:

Absolutely, absolutely.

And that’s a major misnomer in this case, is that the upland owner here, even after the beach restoration project, has riparian littoral property.

That’s what the Florida Supreme Court has held, that’s what the Florida legislation says.

There’s–

John G. Roberts, Jr.:

Well, but it’s not — it’s not the same as the property right he held before, right?

Petitioner Scott D Makar:

–I — I would disagree with that, Mr. Chief Justice.

John G. Roberts, Jr.:

So he can exclude people from the additional 60 feet?

Petitioner Scott D Makar:

But it’s not his — it’s not their property.

It’s the State’s–

John G. Roberts, Jr.:

But, that’s what the case is about.

Petitioner Scott D Makar:

–Well, I — I agree that’s what they have tried to make it about.

What they’ve said is the State now has this swath of sand.

It’s a barrier to protect against erosion.

It’s no wider than this courtroom.

Samuel A. Alito, Jr.:

Well, suppose that — suppose that a city decided that it wanted to attract more students who are going to the beach in Florida for spring break, and so therefore it decided it was going to create a huge beach in front of — of privately owned homes.

Under the decision of the Florida Supreme Court, I don’t see anything that would stop the city from doing that.

So you could have — you could have televised spring break beach parties in front of — of somebody’s house.

Now, in — as a practical matter, doesn’t that have a real effect on the value of the property?

Petitioner Scott D Makar:

Well, Justice Alito, in response, what I’d say here is keep in mind this is the Beach and Shore Preservation Act.

It isn’t designed to create some recreational playground for spring breakers.

It’s designed to–

Samuel A. Alito, Jr.:

No, I understand that, but if the — but the Florida Supreme Court said that there isn’t any right — if there is a manmade extension of the beach, there is no right to exclude people from it; it’s — the beach is owned by the State.

So all of that could take place, couldn’t it?

Petitioner Scott D Makar:

–Well, not under the Act, because — here’s why: Under the Act, what has to be done is a survey.

And you’d have the–

Antonin Scalia:

–He’s not talking about the Act.

He’s just talking about your theory of the case.

Your theory of what the rights of beachfront owners consist of would permit this to happen, if not under this Act, under some other act, right?

Petitioner Scott D Makar:

–Well, if there was — if there were some other act where the legislature passes a law–

Antonin Scalia:

Right.

Well, it’s the Spring Break Act of 2010, okay?

[Laughter]

They could do that, couldn’t they?

Petitioner Scott D Makar:

–Well–

Antonin Scalia:

Under your theory of the case?

Petitioner Scott D Makar:

–Well, they — they would, but the point being is that they would have to preserve the littoral rights of–

Stephen G. Breyer:

Well, why do we have to say that?

I mean, they’re writing a — a — an opinion here against a background of an act, and as I read that opinion — you can add something to this if you want — I make a list of what they say in effect provides, not perfectly, but provides, roughly, the same kind of protection that the Sand Key statement provided.

One, you can go to the water; two, you have a right of ingress and egress, if that’s any different from the first.

I’m not positive.

Three, you have a right under the Act that nobody can put anything on that strip which is injurious to the upland owner.

All right?

So those are at least three things, and I think there’s a fourth.

Yes, the fourth is that nobody can build anything there that is harmful, except if it’s to do with the environment; that’s not harmful, that’s helpful to the beach owner.

It’s supposed to be helpful.

And, five, you get your beach guaranteed.

So all of those things are things you get under this Act in an intermediate case where it’s a little like an avulsion and a little not like an avulsion.

Now, do I add anything to my list?

And do you have to go beyond that?

Petitioner Scott D Makar:

–No, well, there’s — there’s even more, Justice Breyer.

Stephen G. Breyer:

Okay, that’s what I wanted to know.

What more?

Petitioner Scott D Makar:

What the legislature in Florida did as well is to say that when they do the survey, as you see in the document attached in the joint appendix, they have to set out what the width of the berm will be, the sacrificial sand that’s there to erode away over time.

They put the width in there.

And in this particular instance, it’s about 75 feet.

Petitioner Scott D Makar:

And it’s going to erode away.

That cannot be increased without the consent of the owners–

John G. Roberts, Jr.:

So why doesn’t — why don’t you take your list and Justice Breyer’s list and submit that in the just compensation hearing?

When the landowner comes in and says, look, you have taken my property and it is worth $100,000, and you come in and say oh, no, no; it’s not worth $100,000; look at all these things we saved and gave you.

It’s only — what you have lost is only worth $20,000.

And a court will review that and say yes, no, whatever, and that’s what you get.

Petitioner Scott D Makar:

–Well, because, Mr. Chief Justice, under background principles of Florida law, they have no right to contact with the water, and this accretion right is–

John G. Roberts, Jr.:

Again, that is what the whole case is about, whether they have a right to contact the water or not.

It seems to me if your only answer to every question is they don’t have the right, you’re just completely begging the question.

Petitioner Scott D Makar:

–But under — with due respect, under Florida law, they don’t.

And the–

Stephen G. Breyer:

Well, isn’t the question here that the reason they don’t under Florida law is in a situation where the law isn’t clear, we draw the Florida law this way rather than that way, and that is a reasonable common law decision because of the six points that we’ve listed on the list?

Petitioner Scott D Makar:

–Absolutely.

Given this–

Stephen G. Breyer:

So it’s not that it’s a taking–

Petitioner Scott D Makar:

–Absolutely.

Stephen G. Breyer:

–and you’re compensating; it is a reason why this is a — I am somewhat putting words in your mouth, but I mean —-

[Laughter]

Petitioner Scott D Makar:

Well, certainly our position is that there’s no–

Antonin Scalia:

You won’t disagree with that.

[Laughter]

Ruth Bader Ginsburg:

Do you know the answer to the question that was asked of your colleague?

That is, here we have an organization representing several landowners.

Is there any indication about how these beachfront owners in these communities — what their view is, that they are benefited, that they are harmed?

Is there any indication of that?

Petitioner Scott D Makar:

–Other than these Petitioners, Justice Ginsburg, no one has complained about this and said that — and brought an action or — or otherwise.

This is a very beneficial program.

It’s basically a beachfront property protection act, so it’s sort of anomalous that anyone would complain–

Anthony M. Kennedy:

But the problem with the argument that I’m having is that in the last colloquy with Justice Breyer, we heard how reasonable this act was.

That’s one thing.

Anthony M. Kennedy:

But you have taken the position that it’s your property and you can do with it what you want anyway.

Now, maybe in this case it won’t make a difference, because it’s so reasonable, it’s — there’s not a taking.

But what about — what do you call those — the spring fling, the spring break–

[Laughter]

–hypothetical, or a permanent oceanography museum?

Petitioner Scott D Makar:

–Sure, Justice Kennedy.

We have cases in Florida, for example, where a bridge was built entirely across the view of the — of the river, and the upland owner in that situation had a total impairment of their right to view, and that’s compensable.

So — so — but here what we have–

Ruth Bader Ginsburg:

And this statute provides–

Anthony M. Kennedy:

So you–

Ruth Bader Ginsburg:

–This very statute says if — if what happens is a taking, then there’s compensation.

Petitioner Scott D Makar:

–Right.

That said–

Anthony M. Kennedy:

–And you think there’s a taking as a matter of Georgia — pardon me, of Florida law if enjoyment of the view and access is substantially impaired?

I mean, is that the test?

Petitioner Scott D Makar:

–That’s the law in Florida, Justice Kennedy, is that if there’s a substantial impairment.

There’s cases that say that–

John G. Roberts, Jr.:

So on behalf of the State, you concede if any of this list — these — the list of good things that the land owner gets, if the legislature next year takes them away, that would be a taking?

Petitioner Scott D Makar:

–Sure, if they took away the — the swath of littoral rights or a substantial portion, that would be highly problematic and likely be a taking.

Anthony M. Kennedy:

Do you think that either all of the time or some of the time a public beach would — that intervenes between the upland and the water would be a substantial impairment of the upland owner’s rights?

Petitioner Scott D Makar:

No, no, no.

The — the State owns the beach, and let me make this analogy.

Anthony M. Kennedy:

That — that’s exactly my point.

You say that the State owns the beach, and it’s okay because there’s a protection against unreasonable use.

And I’m asking whether or not a State beach with, what do you call them, port-a-johns and hot dog stands and so forth, isn’t a substantial impairment of the upland owner’s use?

And you say, well, the State owns it–

Petitioner Scott D Makar:

Well–

Anthony M. Kennedy:

–But that takes away from your earlier argument that we don’t need to worry because there can be no interference with substantial enjoyment.

And it seems to me that Justice Alito’s question has still not been answered in your argument.

Petitioner Scott D Makar:

–Well, I believe the answer is that this is a facial challenge.

Petitioner Scott D Makar:

There could be an as-applied challenge.

Keep in mind, the association here owns no property.

Anthony M. Kennedy:

I want you to talk to me about what the constitutional law ought to be in this case as a general matter.

We’ll figure out facial and — and as-applied later.

I still see that your argument leaves open this question in my mind raised by the concerns that Justice Alito has expressed.

Petitioner Scott D Makar:

Well — and the Florida Supreme Court was very careful in narrowing its decision and saying that the actual property owners may pursue, if they feel — beyond this opinion, they may pursue an as-applied claim, where they — this has no takings record before this Court whatsoever, and that would have to be developed, keeping in mind that much–

Anthony M. Kennedy:

But when they do, they’re going to be met by you when you’re in the trial court and you say the State owns the property.

Petitioner Scott D Makar:

–Well, just because the State owns the property doesn’t mean there cannot be an impairment of the — of the right.

This is an analogy to say this was a road where — if I might–

John G. Roberts, Jr.:

You can complete your thought.

Petitioner Scott D Makar:

–Sure.

That if this were a road and the traffic — there’s a country road and there’s very little traffic, and over the years the traffic built up, that somehow the owner of the property along that road would have a cause of action.

It’s just not the case.

Thank you very much.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Kneedler.

Edwin S. Kneedler:

Mr. Chief Justice, and may it please the Court: From the outset, this case has been a challenge to the actions of the Florida legislature and its executive branch in enacting and implementing the Beach Restoration Act.

That is a conventional takings claim and that is the way I think it is most useful for this Court to approach it.

Rather than seizing on particular statements in the opinion of the Florida Supreme Court and regarding the Florida Supreme Court’s judicial act as itself a taking, it’s best to focus on the Act itself.

And with respect to the Act itself, what — what has happened here is the State has exercised, not just sovereign regulatory rights; it has exercised critical sovereign proprietary rights.

John G. Roberts, Jr.:

Mr. Kneedler, that’s a clever ploy.

We’re talking about judicial takings and you say, don’t look at what the court did; look at what the legislature did.

That changes the whole ball game.

Edwin S. Kneedler:

Well, but — but, in fairness, first of all, that’s how this case originated, was a challenge–

John G. Roberts, Jr.:

There’s no choice.

If their argument is what the court did constituted the taking, they couldn’t have raised that earlier–

Edwin S. Kneedler:

–No.

My–

John G. Roberts, Jr.:

–and said, oh, we think we know that the court is going to change things.

Edwin S. Kneedler:

–My — my point isn’t — isn’t so much about whether it could have been raised earlier.

Edwin S. Kneedler:

It is that what — what is — what is being objected to here is a — is a — this was not a judicial declaration, for example, that somebody who has littoral property can walk up to the edge of the water and can’t touch it.

There was no abstract declaration on littoral rights.

John G. Roberts, Jr.:

Judicial — judicial taking if that were the case?

Edwin S. Kneedler:

That — that would be more like Hughes.

I’m not sure that I would analyze it as a judicial taking.

I think another way–

Antonin Scalia:

No, no, no–

Edwin S. Kneedler:

–to come at this — and this may even be suggested in — in Justice Scalia’s dissent in the Cannon Beach case — is that the — the usual principle that where State law is interposed in a way that would — would defeat a Federal constitutional right, a court can look to see whether there is a fair and substantial basis for it.

That’s not really a — there’s no need to fashion a new judicial taking doctrine when you have–

Stephen G. Breyer:

Well, why not?

Because — because what they said is: We have a right to touch the water, and you’ve taken it.

That’s what they said this Act does.

Edwin S. Kneedler:

–Right, and–

Stephen G. Breyer:

The court said: You’ve never had that right.

And it’s just like a person who owns 40 acres in the middle of Vermont, and the State wants to build a nuclear power plant, and they say, you have to pay us.

No, says the State.

And the court of the State upholds it on the ground there is an implicit easement under Blackstone to take land for power plants without paying for it; it’s called the power plant easement.

Okay?

Now, in such a case, it would be the judicial taking because their ground is not — whatever you normally have, but their ground is you never had that property right in the first place.

Now, how — if that ever were to happen — and that probably, perhaps, is not this case, but if that ever were to happen, wouldn’t there have to be a remedy under the Constitution for it?

Edwin S. Kneedler:

–And — and maybe so, but — but, again, I think it — it would be possible to — to review it under the general principle about whether a State interpretation of State law that would defeat a claim to Federal right would be without any fair or substantial basis, without — without saying that the supreme court itself has committed an unconstitutional act.

It — it could be looked at that way.

But if I — but if I could turn to the — the operation of this statute, what — what has happened here is — as this Court has recognized in numerous cases, the authority of the State over its submerged lands is a critical aspect of sovereignty.

It is held in trust for the public and for public uses, and what has happened here is the State, with respect to its own sovereign lands, has filled that land.

That does not change the ownership of the sovereign lands.

They remain sovereign lands, and the State has done it for a critical public purpose, to protect–

John G. Roberts, Jr.:

Accretion — accretion, of course, would change.

Edwin S. Kneedler:

–Accretion–

John G. Roberts, Jr.:

It would take submerged State land and give it to the landowner.

Edwin S. Kneedler:

–Accretion would, but — but avulsion or rapid change would not.

John G. Roberts, Jr.:

So a foot — I’ll get back to what I raised earlier.

A foot a year, if the State does it and it’s a foot a year, does the property owner get the foot, or does the State get the foot?

Edwin S. Kneedler:

I — I don’t want to quibble, but I think it depends.

The — the Florida Supreme Court’s decision in Sand Key was a situation where the State had — had erected a jetty or an offshore structure that caused sand to accrete on the — on the property, and the Florida Supreme Court said that belongs to the littoral property owner under the doctrine of — of accretion.

On the other hand, if the State came along once a year, on one day, and added a foot, that would not be gradual and imperceptible, but would be quite perceptible because the State would have added a foot of property.

And even though it’s a small avulsion, I think it — I think it would still count as an avulsion–

John G. Roberts, Jr.:

So it makes a difference whether it’s done in a day or done in a month?

Edwin S. Kneedler:

–Well, the — the difference between accretion and avulsion is whether it’s gradual and imperceptible or whether it’s — whether it’s dramatic or–

Anthony M. Kennedy:

What authority is there in Florida law or in general law to say that the act of an — an artificial person is an accretion or avulsion, instead of just an act of nature?

What — what case do I read or authority do I read?

Edwin S. Kneedler:

–Well, the Florida Supreme Court’s decision in the — in the Peppe case relied on Martin v. Busch, which — I agree with Justice Scalia, it’s very critical here, where there was State action in draining the lake, which exposed the surface — the — the formerly submerged land, and the Florida Supreme Court said that land belongs to the State, it was action by the State in a dramatic way.

And Florida–

Anthony M. Kennedy:

But — but did they call it an avulsion?

Edwin S. Kneedler:

–They — they did not there, but in — but in–

Anthony M. Kennedy:

That — that — so that doesn’t answer my question.

Edwin S. Kneedler:

–No, but my point was, in Peppe, where — where there was actually an avulsion, the court characterized what happened in Martin v. Busch as an avulsive act.

But you don’t need to label avulsion, because there’s a separate doctrine that when the State fills its own land, it remains its own land.

And I’d like to point out — this is not a unique doctrine–

Samuel A. Alito, Jr.:

Can I just ask you this, Mr. Kneedler, before your time expires, what — I agree, Martin v. Busch seems to be the case that’s most — provides the greatest support for what the Florida Supreme Court did here.

But what do we do about the fact that the Florida Supreme Court didn’t rely on it?

Edwin S. Kneedler:

–I — I think it is surprising, although the Florida Supreme Court did discuss avulsion, but if — if I could just make one point.

This is not a — a unique notion in Florida law.

This Court’s decision in Hughes v. Washington, which dealt with accretion, responded to the — to the point that was — that was made there and said, well, the — the littoral property right is vulnerable anyway because the owner of the adjacent submerged lands can always take action on his own lands that could affect what the upland property owner did.

And this — and this Court said, yes, that’s right, but we’re talking, here, about natural causes.

And in — in Hughes, the Court cited two cases, one in Washington State, for example, where the — where there was an absolute right to fill the submerged lands even if that completely cut off access.

It also pointed out another case, from New Jersey, where — where the — a case of this — from this Court, where the Court said, you have a right to accretion as long as nobody’s filled the land in between.

John G. Roberts, Jr.:

Counsel, what is your–

Edwin S. Kneedler:

But once the land–

John G. Roberts, Jr.:

–I’m sorry.

What — what is your view on the hypothetical I posed to your — to your friend?

John G. Roberts, Jr.:

The legislature moves it to the vegetation line.

The State supreme court says that’s a taking.

Somebody runs for election to the State supreme court, saying, I’m going to change that.

He’s elected.

He changes the law.

Is that a judicial taking?

Edwin S. Kneedler:

–Again, I think I would analyze it under the fair and substantial basis.

But, yes, if there — if there is no justification in background law, if it’s basically pretextual in the same way that — that any–

John G. Roberts, Jr.:

Well, doesn’t — it’s not pretextual.

Edwin S. Kneedler:

–Not pretextual, but if there’s–

John G. Roberts, Jr.:

He says, I think they got the law wrong.

Edwin S. Kneedler:

–But — but the phrasing the Court has used in the due process is whether it’s unforeseen and indefensible.

I mean, if — if there’s just — if there’s just — if it’s just ipse dixit.

But there — but there — but that’s by no means true here.

And it’s important that Martin v. Busch was cited in the two — and distinguished in the two principal cases on which the Petitioner relies here.

In Sand Key, the court distinguished Martin v. Busch on the ground that in Sand Key it was an accretion, but — and it distinguished Martin v. Busch on the — on the ground that there it was a — it was a sudden, dramatic action by the State, and the — and the same thing was also true in the Florida National case, where the — the court again distinguished–

Sonia Sotomayor:

Counsel–

Edwin S. Kneedler:

–Martin v. Busch on that ground.

Sonia Sotomayor:

–Would you have answered Justice Scalia’s question that there’s a common — a generally understood common law right, littoral right, to contact with the water?

Would you say there is not?

Edwin S. Kneedler:

I would — I would say there — I would say it’s tied up with the right of access, as long as the littoral property owner remains adjacent to the water.

But what you have here is a neighboring property owner, the sovereign, exercising critical sovereign rights over its property, which has its own property interests, and if under Florida law the — the State is permitted to put sand on the beach — this is — this is not filling for an amusement park.

This is adding something that is very germane to the maintenance of the beach, for critical public purposes, the very reasons–

John G. Roberts, Jr.:

It could be — it could be adding an amusement park, though, under your theory, right?

Edwin S. Kneedler:

–No, it — I don’t think there’s any universal theory of this.

As I — as I said in — in the Port of Seattle case–

John G. Roberts, Jr.:

It’s the State’s property.

Edwin S. Kneedler:

–Well, I–

John G. Roberts, Jr.:

It’s the State’s property.

they can.

John G. Roberts, Jr.:

If they want to put an amusement park on, they can–

Edwin S. Kneedler:

–No.

It varies.

And in–

that may be true in the Port of Seattle case discussed in Hughes, where the State had the — you’re balancing the rights of adjacent property owners, just like — just like nuisance or other principles do.

In Washington State, apparently, you could completely fill the submerged land and the upland owner had no rights.

In Florida — Florida is actually more protective than that.

It has limited rights.

You have a — you maintain a right of view, a right against unreasonable interference.

So there’s no one constitutionally based rule.

It’s a question of Florida property law.

And the background principles of Florida property law under Martin v. Busch and the fact that the State owns the adjacent land, I think, not only is there — there is more than a fair and substantial basis here.

There is a — it’s very solidly grounded in State law.

John G. Roberts, Jr.:

–Let’s see if there are any further questions.

(No response.

–Thank you, counsel.

Mr. Safriet, 4 minutes.

D. Kent Safriet:

Thank you, Your Honor.

First, Martin v. Busch does not stand for the principles that the Respondents suggest they do.

The court in Sand Key said, and in — and in distinguishing the Martin v. Busch case, and I quote,

“Our subsequent decisions show there was no intent to change common law principles regarding the right to accretion and relictions in Martin v. Busch. “

And even if it did stand for that principle, the Martin v. Busch case didn’t discuss whether the landowner was entitled to compensation for the severance of their waterfront property as a result of the lowering of the water.

What also must be noted here is the State is changing the deeds.

They’re changing the legal description and the deeds of the Petitioner’s members.

These Petitioner’s members own to the mean high-water line.

They have a right, not only under Florida common law to own to the mean high-water line; under their deeds, that’s what they purchased.

And there has been a lot of discussion and, I think, maybe some confusion about this right to contact the water.

Antonin Scalia:

They wouldn’t own to the mean high-water mark if there were an avulsion, if — right?

If–

D. Kent Safriet:

No, Your Honor.

Antonin Scalia:

–If by nature, this 60-foot beach had been put in, then their deed would be changed, wouldn’t it?

D. Kent Safriet:

Temporarily, Your Honor, because under the doctrine of reclamation, they can reclaim the boundary line that they lost, just as if in a case where the hurricane washes sand away, the landowner, under common law, the doctrine of reclamation, can bring in sand where the water is to reconnect to that mean high-water line that would be underwater following a hurricane.

Stephen G. Breyer:

Now, how does that work?

I mean, I have a beachfront property; I wake up one morning and there’s a little half-mile island attached to half of it, and there we are.

Mean high-water mark is half a mile away.

You say I can reclaim that under Florida law?

What’s that mean?

D. Kent Safriet:

Yes, Florida law allows, under the doctrine of reclamation, which is what the Florida Supreme Court relied on–

Stephen G. Breyer:

Which is — how does it work?

D. Kent Safriet:

–You’d have to remove the sand.

Antonin Scalia:

You shovel away the sand.

Stephen G. Breyer:

Oh, no, no.

This is — you can’t.

You can’t.

Antonin Scalia:

What if it’s going the opposite way?

What if it’s — if they built up sand?

I mean–

Stephen G. Breyer:

It’s rock.

Antonin Scalia:

–Yes.

[Laughter]

Stephen G. Breyer:

Okay, so what happens?

D. Kent Safriet:

I’m not sure the common law envisioned rock coming up to–

Stephen G. Breyer:

It can happen.

Okay.

So my point is, I think, which is the same, I think, as Justice Scalia, that he — that the upland owner no longer, under the law of Florida, has a way of getting his land out to the mean high-water mark.

Am I right or wrong?

D. Kent Safriet:

–I think that’s wrong, Your Honor.

Under the doctrine of reclamation–

Stephen G. Breyer:

Okay.

Because?

D. Kent Safriet:

–Under the doctrine of reclamation, they can reclaim the boundary line.

If that’s by depositing new sand where the water is to reach the mean high-water line, where it was prior to the hurricane.

They can do that.

Conversely, if sand is washed up as a result of a hurricane, they can remove the sand to bring the water line back to them.

Antonin Scalia:

They can go on the State land to do that?

Because that sand is sitting on State land.

D. Kent Safriet:

That wouldn’t be State — they can — the common law allows them to reclaim what they’re lost — what they lost, Your Honor.

And the Florida Supreme Court tries to rely on this doctrine of reclamation in this case.

It asserts that the State is only doing what it was allowed under common law, reclaiming the land that it lost.

But in this case, the Florida Supreme Court — or the State of Florida didn’t ever possess any dry sand land, so they can’t reclaim any dry sand land.

The only thing they have ever owned was the foreshore and the sovereign submerged lands.

So that’s the only thing they can reclaim.

I think there was another question about the support for this case.

There is more than five landowners that don’t support this case.

In the lower courts, there was another group, Save Our Beaches, that had, I believe, roughly 150 members that opposed this project as well in the City of Destin.

In this case, we’re also dealing with a physical taking.

Ruth Bader Ginsburg:

Why did they drop out?

D. Kent Safriet:

Lack of standing at the administrative hearing, Your Honor.

What we’re dealing with in this case is a physical taking.

What rights were physically possessed by the Respondent’s members — the Petitioner’s members in this case are now possessed by the State.

It’s a wholesale transfer of these rights, along with the transfer of the deed — or the description of the deed.

We’re not asking this–

Ruth Bader Ginsburg:

I don’t understand why isn’t it — it is equally an addition to the private property owners’ rights when they had a narrow beach and now they’re claiming that — that it’s all theirs, the full 75 feet.

D. Kent Safriet:

–I’m sorry, Your Honor, I didn’t hear your question.

Ruth Bader Ginsburg:

They have, under your theory, much more property than they had before.

They have a wider beach that’s theirs, so they have gained property, but that doesn’t count?

D. Kent Safriet:

Well, they haven’t gained property, Your Honor, because the State’s claiming title to that new beach.

So our — the Petitioner’s members owned exactly what they owned as of September 7, 2003, when the property boundary was changed, and the new boundary would — the new land would be State-owned.

John G. Roberts, Jr.:

Thank you, counsel.

D. Kent Safriet:

Thank you.

John G. Roberts, Jr.:

The case is submitted.

The Honorable Court is now adjourned until Monday next at [= 10 a.m.].