Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection

OPINION OF THE COURT STOP THE BEACH RENOURISHMENT, INC. V. FLOR-IDA DEPT. OF
ENVIRONMENTAL PROTECTION 560 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1151 STOP THE BEACH RENOURISHMENT, INC., PETITIONER v. FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
et al.

															on writ of certiorari to the supreme court of
florida

															[June 17, 2010]

															   Justice Scalia announced the
judgment of the Court and delivered the opinion of the Court with
respect to Parts I, IV, and V, and an opinion with respect to Parts
II and III, in which The Chief Justice, Justice Thomas, and Justice
Alito join.

															   We consider a claim that the
decision of a State’s court of last resort took property without
just compensation in violation of the Takings Clause of the Fifth
Amendment, as applied against the States through the Fourteenth,
see Dolan v. City of Tigard , 512 U. S. 374 , 383–384
(1994).

															I

															A

															   Generally speaking, state law
defines property interests, Phillips v. Washington
Legal Foundation , 524 U. S. 156 , 164
(1998), including property rights in navigable waters and the lands
underneath them, see United States v. Cress , 243 U. S. 316 ,
319–320 (1917); St. Anthony Falls Water Power Co. v. St. Paul Water Comm’rs , 168 U. S. 349 , 358–359
(1897). In Florida, the State owns in trust for the public the land
permanently submerged beneath navigable waters and the foreshore
(the land between the low-tide line and the mean high-water line).
Fla. Const., Art. X, §11; Broward v. Mabry ,
58 Fla. 398, 407–409, 50 So. 826, 829–830 (1909). Thus, the mean
high-water line (the average reach of high tide over the preceding
19 years) is the ordinary boundary between private beachfront, or
littoral[ Footnote 1 ] property,
and state-owned land. See Miller v. Bay-To-Gulf , Inc. , 141 Fla. 452, 458–460, 193 So. 425, 427–428 (1940) (per curiam); Fla. Stat. §§177.27(14)–(15), 177.28(1)
(2007).

															   Littoral owners have, in addition
to the rights of the public, certain “special rights” with regard
to the water and the foreshore, Broward , 58 Fla., at 410,
50 So., at 830, rights which Florida considers to be property,
generally akin to easements, see ibid.; Thiesen v. Gulf, Florida & Alabama R. Co., 75 Fla. 28,
57, 78, 78 So. 491, 500, 507 (1918) (on rehearing). These include
the right of access to the water, the right to use the water for
certain purposes, the right to an unobstructed view of the water,
and the right to receive accretions and relictions to the littoral
property. Id., at 58–59, 78 So., at 501; Board of
Trustees of Internal Improvement Trust Fund v. Sand Key
Assoc., Ltd. , 512 So. 2d 934, 936 (Fla. 1987). This is
generally in accord with well-established common law, although the
precise property rights vary among jurisdictions. Compare Broward , supra , at 409–410, 50 So., at 830, with
1 J. Lewis, Law of Eminent Domain §100 (3d ed. 1909); 1 H. Farnham,
Law of Waters and Water Rights §62, pp. 278–280 (1904) (hereinafter
Farnham).

															   At the center of this case is the right to
accretions and relictions. Accretions are additions of alluvion
(sand, sediment, or other deposits) to waterfront land; relictions
are lands once covered by water that become dry when the water
recedes. F. Maloney, S. Plager, & F. Baldwin, Water Law and
Administration: The Florida Experience §126, pp. 385–386 (1968)
(hereinafter Maloney); 1 Farnham §69, at 320. (For simplicity’s
sake, we shall refer to accretions and relictions collectively as
accretions, and the process whereby they occur as accretion.) In
order for an addition to dry land to qualify as an accretion, it
must have occurred gradually and imperceptibly—that is, so slowly
that one could not see the change occurring, though over time the
difference became apparent. Sand Key , supra , at
936; County of St. Clair v. Lovingston , 23 Wall.
46, 66–67 (1874). When, on the other hand, there is a “sudden or
perceptible loss of or addition to land by the action of the water
or a sudden change in the bed of a lake or the course of a stream,”
the change is called an avulsion. Sand Key , supra , at 936; see also 1 Farnham §69, at 320.

															   In Florida, as at common law, the littoral
owner automatically takes title to dry land added to his property
by accretion; but formerly submerged land that has become dry land
by avulsion continues to belong to the owner of the seabed (usually
the State). See, e.g., Sand Key , supra ,
at 937; Maloney §126.6, at 392; 2 W. Blackstone, Commentaries on
the Laws of England 261–262 (1766) (hereinafter Blackstone). Thus,
regardless of whether an avulsive event exposes land previously
submerged or submerges land previously exposed, the boundary
between littoral property and sovereign land does not change; it
remains (ordinarily) what was the mean high-water line before the
event. See Bryant v. Peppe , 238 So. 2d 836,
838–839 (Fla. 1970); J. Gould, Law of Waters §158, p. 290 (1883).
It follows from this that, when a new strip of land has been added
to the shore by avulsion, the littoral owner has no right to
subsequent accretions. Those accretions no longer add to his property, since the property abutting the water
belongs not to him but to the State. See Maloney §126.6, at 393; 1
Farnham §71a, at 328.

															B

															   In 1961, Florida’s Legislature
passed the Beach and Shore Preservation Act, 1961 Fla. Laws ch.
61–246, as amended, Fla. Stat. §§161.011–161.45 (2007). The Act
establishes procedures for “beach restoration and nourishment
projects,” §161.088, designed to deposit sand on eroded beaches
(restoration) and to maintain the deposited sand (nourishment).
§§161.021(3), (4). A local government may apply to the Department
of Environmental Protection for the funds and the necessary permits
to restore a beach, see §§161.101(1), 161.041(1). When the project
involves placing fill on the State’s submerged lands, authorization
is required from the Board of Trustees of the Internal Improvement
Trust Fund, see §253.77(1), which holds title to those lands,
§253.12(1).

															   Once a beach restoration “is
determined to be undertaken,” the Board sets what is called “an
erosion control line.” §§161.161(3)–(5). It must be set by
reference to the existing mean high-water line, though in theory it
can be located seaward or landward of that.[ Footnote 2 ] See §161.161(5). Much of the project work
occurs seaward of the erosion-control line, as sand is dumped on
what was once submerged land. See App. 87–88. The fixed
erosion-control line replaces the fluctuating mean high-water line
as the boundary between privately owned littoral property and state
property. §161.191(1). Once the erosion-control line is recorded,
the common law ceases to increase upland property by accretion (or
decrease it by erosion). §161.191(2). Thus, when accretion to the
shore moves the mean high-water line seaward, the property of
beachfront landowners is not extended to that line (as the prior
law provided), but remains bounded by the permanent erosion-control
line. Those landowners “continue to be entitled,” however, “to all
common-law riparian rights” other than the right to accretions.
§161.201. If the beach erodes back landward of the erosion-control
line over a substantial portion of the shoreline covered by the
project, the Board may, on its own initiative, or must, if asked by
the owners or lessees of a majority of the property affected,
direct the agency responsible for maintaining the beach to return
the beach to the condition contemplated by the project. If that is
not done within a year, the project is canceled and the
erosion-control line is null and void. §161.211(2), (3). Finally,
by regulation, if the use of submerged land would “unreasonably
infringe on riparian rights,” the project cannot proceed unless the
local governments show that they own or have a property interest in
the upland property adjacent to the project site. Fla. Admin. Code
Rule 18–21.004(3)(b) (2009).

															C

															   In 2003, the city of Destin and
Walton County applied for the necessary permits to restore 6.9
miles of beach within their jurisdictions that had been eroded by
several hurricanes. The project envisioned depositing along that
shore sand dredged from further out. See Walton Cty. v. Stop the Beach Renourishment, Inc. , 998 So. 2d 1102,
1106 (Fla. 2008). It would add about 75 feet of dry sand seaward of
the mean high-water line (to be denominated the erosion-control
line). The Department issued a notice of intent to award the
permits, App. 27–41, and the Board approved the erosion-control
line, id. , at 49–50.

															   The petitioner here, Stop the
Beach Renourishment, Inc., is a nonprofit corporation formed by
people who own beachfront property bordering the project area (we
shall refer to them as the Members). It brought an administrative
challenge to the proposed project, see id. , at 10–26,
which was unsuccessful; the Department approved the permits.
Petitioner then challenged that action in state court under the
Florida Administrative Procedure Act, Fla. Stat. §120.68 (2007).
The District Court of Appeal for the First District concluded that,
contrary to the Act’s preservation of “all common-law riparian
rights,” the order had eliminated two of the Members’ littoral
rights: (1) the right to receive accretions to their property; and
(2) the right to have the contact of their property with the water
remain intact. Save Our Beaches , Inc. v. Florida Dept. of Environmental Protection , 27 So. 3d
48, 57 (2006). This, it believed, would be an unconstitutional
taking, which would “unreasonably infringe on riparian rights,” and
therefore require the showing under Fla. Admin. Code Rule
18–21.004(3)(b) that the local governments owned or had a property
interest in the upland property. It set aside the Department’s
final order approving the permits and remanded for that showing to
be made. 27 So. 3d, at 60. It also certified to the Florida
Supreme Court the following question (as rephrased by the latter
court):

															   “On its face, does the Beach and
Shore Preservation Act unconstitutionally deprive upland owners of
littoral rights without just compensation?”[ Footnote 3 ] 998 So. 2d, at 1105 (footnotes
omitted).

															   The Florida Supreme Court
answered the certified question in the negative, and quashed the
First District’s remand. Id. , at 1121. It faulted the
Court of Appeal for not considering the doctrine of avulsion, which
it concluded permitted the State to reclaim the restored beach on
behalf of the public. Id., at 1116–1118. 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 independent of the littoral right of access, which
the Act does not infringe. Id., at 1112, 1119–1120.
Petitioner sought rehearing on the ground that the Florida Supreme
Court’s decision itself effected a taking of the Members’ littoral
rights contrary to the Fifth and Fourteenth Amendments to the
Federal Constitution.[ Footnote
4 ] The request for rehearing was denied. We granted certiorari,
557 U. S. ___ (2009).

															II

															A

															   Before coming to the parties’
arguments in the present case, we discuss some general principles
of our takings jurisprudence. The Takings Clause—“nor shall private
property be taken for public use, without just compensation,” U. S.
Const., Amdt. 5—applies as fully to the taking of a landowner’s
riparian rights as it does to the taking of an estate in
land.[ Footnote 5 ] See Yates v. Milwaukee , 10 Wall. 497, 504 (1871).
Moreover, though the classic taking is a transfer of property to
the State or to another private party by eminent domain, the
Takings Clause applies to other state actions that achieve the same
thing. Thus, when the government uses its own property in such a
way that it destroys private property, it has taken that property.
See United States v. Causby , 328 U. S. 256 , 261–262
(1946); Pumpelly v. Green Bay Co. , 13 Wall. 166,
177–178 (1872). Similarly, our doctrine of regulatory takings “aims
to identify regulatory actions that are functionally equivalent to
the classic taking.” Lingle v. Chevron U. S. A.
Inc. , 544 U. S.
528 , 539 (2005). Thus, it is a taking when a state regulation
forces a property owner to submit to a permanent physical
occupation, Loretto v. Teleprompter Manhattan CATV
Corp. , 458 U.
S. 419 , 425–426 (1982), or deprives him of all economically
beneficial use of his property, Lucas v. South
Carolina Coastal Council , 505 U. S. 1003 , 1019
(1992). Finally (and here we approach the situation before us),
States effect a taking if they recharacterize as public property
what was previously private property. See Webb’s Fabulous
Pharmacies, Inc. v. Beckwith , 449 U. S. 155 , 163–165
(1980).

															   The Takings Clause (unlike, for
instance, the Ex Post Facto Clauses, see Art. I, §9,
cl. 3; §10, cl. 1) is not addressed to the action of a
specific branch or branches. It is concerned simply with the act,
and not with the governmental actor (“nor shall private property be taken ” (emphasis added)). There is no textual
justification for saying that the existence or the scope of a
State’s power to expropriate private property without just
compensation varies according to the branch of government effecting
the expropriation. Nor does common sense recommend such a
principle. It would be absurd to allow a State to do by judicial
decree what the Takings Clause forbids it to do by legislative
fiat. See Stevens v. Cannon Beach , 510 U. S. 1207 ,
1211–1212 (1994) (Scalia, J., dissenting from denial of
certiorari).

															   Our precedents provide no support for the
proposition that takings effected by the judicial branch are
entitled to special treatment, and in fact suggest the contrary. PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980),
involved a decision of the California Supreme Court overruling one
of its prior decisions which had held that the California
Constitution’s guarantees of freedom of speech and of the press,
and of the right to petition the government, did not require the
owner of private property to accord those rights on his premises.
The appellants, owners of a shopping center, contended that their
private property rights could not “be denied by invocation of a
state constitutional provision or by judicial reconstruction of
a State’s laws of private property ,” id ., at 79
(emphasis added). We held that there had been no taking, citing
cases involving legislative and executive takings, and applying
standard Takings Clause analysis. See id., at 82–84. We
treated the California Supreme Court’s application of the
constitutional provisions as a regulation of the use of private
property, and evaluated whether that regulation violated the
property owners’ “right to exclude others,” id., at 80
(internal quotation marks omitted). Our opinion addressed only the
claimed taking by the constitutional provision. Its failure to
speak separately to the claimed taking by “judicial reconstruction
of a State’s laws of private property” certainly does not suggest
that a taking by judicial action cannot occur, and arguably
suggests that the same analysis applicable to taking by
constitutional provision would apply. Webb’s Fabulous Pharmacies , supra , is even closer in point. There the purchaser of an
insolvent corporation had interpleaded the corporation’s creditors,
placing the purchase price in an interest-bearing account in the
registry of the Circuit Court of Seminole County, to be distributed
in satisfaction of claims approved by a receiver. The Florida
Supreme Court construed an applicable statute to mean that the
interest on the account belonged to the county, because the account
was “considered ‘public money,’ ” Beckwith v. Webb’s Fabulous Pharmacies , 374 So. 2d 951, 952–953
(1979) (per curiam) . We held this to be a taking. We noted
that “[t]he usual and general rule is that any interest on an
interpleaded and deposited fund follows the principal and is to be
allocated to those who are ultimately to be the owners of that
principal,” 449 U. S., at 162. “Neither the Florida Legislature by
statute, nor the Florida courts by judicial decree,” we said, “may
accomplish the result the county seeks simply by recharacterizing
the principal as ‘public money.’ ” Id., at 164.

															   In sum, the Takings Clause bars the
State from taking private property without paying for it, no
matter which branch is the instrument of the taking. To be sure,
the manner of state action may matter: Condemnation by eminent
domain, for example, is always a taking, while a legislative,
executive, or judicial restriction of property use may or may not
be, depending on its nature and extent. But the particular state actor is irrelevant. If a legislature or a court declares that what was once an established right of private
property no longer exists, it has taken that property, no less than
if the State had physically appropriated it or destroyed its value
by regulation. “[A] State, by ipse dixit , may not
transform private property into public property without
compensation.” Ibid. B Justice Breyer’s
concurrence says that we need neither (1) to decide whether the
judiciary can ever effect a taking, nor (2) to establish the
standard for determining whether it has done so. See post ,
at 1–2 (opinion concurring in part and concurring in judgment). The
second part of this is surely incompatible with Justice Breyer’s
conclusion that the “Florida Supreme Court’s decision in this case
did not amount to a ‘judicial taking.’ ” Post , at 3.
One cannot know whether a takings claim is invalid without knowing
what standard it has failed to meet.[ Footnote 6 ] Which means that Justice Breyer must either
(a) grapple with the artificial question of what would constitute a
judicial taking if there were such a thing as a judicial taking
(reminiscent of the perplexing question how much wood would a
woodchuck chuck if a woodchuck could chuck wood?), or (b) answer in
the negative what he considers to be the “unnecessary”
constitutional question whether there is such a thing as a judicial
taking.

															   It is not true that deciding the
constitutional question in this case contradicts our settled
practice. To the contrary, we have often recognized the existence
of a constitutional right, or established the test for violation of
such a right (or both), and then gone on to find that the claim at
issue fails. See, e.g., New Jersey v. T. L. O. , 469 U. S. 325 , 333,
341–343 (1985) (holding that the Fourth Amendment applies to
searches and seizures conducted by public-school officials,
establishing the standard for finding a violation, but concluding
that the claim at issue failed); Strickland v. Washington , 466 U. S. 668 , 687,
698–700 (1984) (recognizing a constitutional right to effective
assistance of counsel, establishing the test for its violation, but
holding that the claim at issue failed); Hill v. Lockhart , 474 U. S. 52 , 58–60
(1985) (holding that a Strickland claim can be brought to
challenge a guilty plea, but rejecting the claim at issue); Jackson v. Virginia , 443 U. S. 307 , 313–320,
326 (1979) (recognizing a due process claim based on insufficiency
of evidence, establishing the governing test, but concluding that
the claim at issue failed); Village of Euclid v. Ambler Realty Co. , 272 U. S. 365 , 390,
395–397 (1926) (recognizing that block zoning ordinances could
constitute a taking, but holding that the challenged ordinance did
not do so); Chicago, B. & Q. R. Co. v. Chicago , 166 U. S. 226 , 241,
255–257 (1897) (holding that the Due Process Clause of the
Fourteenth Amendment prohibits uncompensated takings, but
concluding that the court below made no errors of law in assessing
just compensation). In constitutional-tort suits against public
officials, we have found the defendants entitled to immunity only
after holding that their action violated the Constitution. See, e.g., Wilson v. Layne , 526 U. S. 603 , 605–606
(1999). Indeed, up until last Term, we required federal
courts to address the constitutional question before the immunity
question. See Saucier v. Katz , 533 U. S. 194 , 201
(2001), overruled by Pearson v. Callahan , 555 U.
S. ___, ___ (2009) (slip op., at 10).

															   “Assuming without deciding” would be less
appropriate here than it was in many of those earlier cases, which
established constitutional rights quite separate from any that had
previously been acknowledged. Compared to Strickland ’s
proclamation of a right to effective assistance of counsel, for
example, proclaiming that a taking can occur through judicial
action addresses a point of relative detail.

															   In sum, Justice Breyer cannot decide that
petitioner’s claim fails without first deciding what a valid claim
would consist of. His agreement with Part IV of our opinion
necessarily implies agreement with the test for a judicial taking
(elaborated in Part II–A) which Part IV applies: whether the state
court has “declare[d] that what was once an established right of
private property no longer exists,” supra , at 10. Justice
Breyer must either agree with that standard or craft one of his
own. And agreeing to or crafting a hypothetical standard
for a hypothetical constitutional right is sufficiently
unappealing (we have eschewed that course many times in the past)
that Justice Breyer might as well acknowledge the right as well. Or
he could avoid the need to agree with or craft a hypothetical
standard by denying the right. But embracing a standard
while being coy about the right is, well, odd; and deciding this
case while addressing neither the standard nor the right is quite impossible.

															   Justice Breyer responds that he simply
advocates resolving this case without establishing “ the
precise standard under which a party wins or loses.” Post , at 3 (emphasis added). But he relies upon no
standard at all, precise or imprecise. He simply pronounces that
this is not a judicial taking if there is such a thing as a
judicial taking. The cases he cites to support this Queen-of-Hearts
approach provide no precedent. In each of them the existence of the
right in question was settled,[ Footnote 7 ] and we faced a choice between competing standards that had been applied by the
courts.[ Footnote 8 ] We simply
held that the right in question had not been infringed under any of them. There is no established right here, and no
competing standards.

															C

															   Like Justice Breyer’s
concurrence, Justice Kennedy’s concludes that the Florida Supreme
Court’s action here does not meet the standard for a judicial
taking, while purporting not to determine what is the standard for
a judicial taking, or indeed whether such a thing as a judicial
taking even exists. That approach is invalid for the reasons we
have discussed.

															   Justice Kennedy says that we need
not take what he considers the bold and risky step of holding that
the Takings Clause applies to judicial action, because the Due
Process Clause “would likely prevent a State from doing by judicial
decree what the Takings Clause forbids it to do by legislative
fiat,” post , at 4–5 (opinion concurring in part and
concurring in judgment) (internal quotation marks omitted). He
invokes the Due Process Clause “in both its substantive and
procedural aspects,” post, at 3, not specifying which of
his arguments relates to which.

															   The first respect in which Justice Kennedy
thinks the Due Process Clause can do the job seems to sound in
Procedural Due Process. Because, he says, “[c]ourts, unlike the
executive or legislature, are not designed to make policy
decisions” about expropriation, “[t]he Court would be on strong
footing in ruling that a judicial decision that eliminates or
substantially changes established property rights” violates the Due
Process Clause. Post , at 4. Let us be clear what is being
proposed here. This Court has held that the separation-of-powers
principles that the Constitution imposes upon the Federal
Government do not apply against the States. See Dreyer v. Illinois , 187 U. S. 71 , 83–84
(1902). But in order to avoid the bold and risky step of saying
that the Takings Clause applies to all government takings,
Justice Kennedy would have us use Procedural Due Process to impose
judicially crafted separation-of-powers limitations upon the
States: courts cannot be used to perform the governmental function
of expropriation. The asserted reasons for the due-process
limitation are that the legislative and executive branches “are
accountable in their political capacity” for takings, post , at 2, and “[c]ourts . . . are not designed to make
policy decisions” about takings, post, at 4. These reasons
may have a lot to do with sound separation-of-powers principles
that ought to govern a democratic society, but they have nothing
whatever to do with the protection of individual rights that is the
object of the Due Process Clause.

															   Of course even taking those reasons at face
value, it is strange to proclaim a democracy deficit and lack of
special competence for the judicial taking of an individual
property right, when this Court has had no trouble deciding matters
of much greater moment, contrary to congressional desire or the
legislated desires of most of the States, with no special
competence except the authority we possess to enforce the
Constitution. In any case, our opinion does not trust
judges with the relatively small power Justice Kennedy now objects
to. It is we who propose setting aside judicial decisions that take
private property; it is he who insists that judges cannot be so
limited. Under his regime, the citizen whose property has been
judicially redefined to belong to the State would presumably be
given the Orwellian explanation: “The court did not take your
property. Because it is neither politically accountable nor
competent to make such a decision, it cannot take property.”

															   Justice Kennedy’s injection of
separation-of-powers principles into the Due Process Clause would
also have the ironic effect of preventing the assignment of the
expropriation function to the branch of government whose procedures
are, by far, the most protective of individual rights. So
perhaps even this first respect in which Justice Kennedy would have
the Due Process Clause do the work of the Takings Clause pertains
to Substantive, rather than Procedural, Due Process. His other
arguments undoubtedly pertain to that, as evidenced by his
assertion that “[i]t is … natural to read the Due Process Clause as
limiting the power of courts to eliminate or change established
property rights,” post , at 3, his endorsement of the
proposition that the Due Process Clause imposes “limits on
government’s ability to diminish property values by regulation,” ibid. , and his contention that “the Due Process Clause
would likely prevent a State from doing by judicial decree what the
Takings Clause forbids it to do by legislative fiat,” post, at 4 (internal quotation marks omitted).

															   The first problem with using Substantive Due
Process to do the work of the Takings Clause is that we have held
it cannot be done. “Where a particular Amendment ‘provides an
explicit textual source of constitutional protection’ against a
particular sort of government behavior, ‘that Amendment, not the
more generalized notion of “substantive due process,” must be the
guide for analyzing these claims.’ ” Albright v. Oliver , 510
U. S. 266 , 273 (1994) (four-Justice plurality opinion) (quoting Graham v. Connor , 490 U. S. 386 , 395
(1989)); see also 510 U. S., at 281 (Kennedy, J., concurring in
judgment) (“I agree with the plurality that an allegation of arrest
without probable cause must be analyzed under the Fourth Amendment
without reference to more general considerations of due process”).
The second problem is that we have held for many years (logically
or not) that the “liberties” protected by Substantive Due Process
do not include economic liberties. See, e.g., Lincoln
Fed. Labor Union v. Northwestern Iron & Metal
Co. , 335 U. S.
525 , 536 (1949). Justice Kennedy’s language (“If a judicial
decision … eliminates an established property right, the judgment
could be set aside as a deprivation of property without due process
of law,” post , at 3) propels us back to what is referred
to (usually deprecatingly) as “the Lochner era.” See Lochner v. New York , 198 U. S.45, 56–58 (1905).
That is a step of much greater novelty, and much more unpredictable
effect, than merely applying the Takings Clause to judicial action.
And the third and last problem with using Substantive Due Process
is that either (1) it will not do all that the Takings Clause does,
or (2) if it does all that the Takings Clause does, it will
encounter the same supposed difficulties that Justice Kennedy finds
troublesome.

															   We do not grasp the relevance of Justice
Kennedy’s speculation, post , at 6, that the Framers did
not envision the Takings Clause would apply to judicial action.
They doubtless did not, since the Constitution was adopted in an
era when courts had no power to “change” the common law. See 1
Blackstone 69–70 (1765); Rogers v. Tennessee , 532 U. S. 451 ,
472–478 (2001) (Scalia, J., dissenting). Where the text they
adopted is clear, however (“nor shall private property be taken for
public use”), what counts is not what they envisioned but what they
wrote. Of course even after courts, in the 19th century, did assume
the power to change the common law, it is not true that the new
“common-law tradition . . . allows for incremental modifications to
property law,” post , at 4, so that “owners may reasonably
expect or anticipate courts to make certain changes in property
law,” post, at 6. In the only sense in which this could be
relevant to what we are discussing, that is an astounding
statement. We are talking here about judicial elimination of
established private property rights. If that is indeed a
“common-law tradition,” Justice Kennedy ought to be able to provide
a more solid example for it than the only one he cites, post , at 5, a state-court change (from “noxious” to
“harmful”) of the test for determining whether a neighbor’s
vegetation is a tortious nuisance. Fancher v. Fagella , 274 Va. 549, 555–556, 650 S. E. 2d 519, 522
(2007). But perhaps he does not really mean that it is a common-law
tradition to eliminate property rights, since he immediately
follows his statement that “owners may reasonably expect or
anticipate courts to make certain changes in property law” with the
contradictory statement that “courts cannot abandon settled
principles,” post, at 6. If no “settled principl[e]” has
been abandoned, it is hard to see how property law could have been
“change[d],” rather than merely clarified.

															   Justice Kennedy has added “two additional
practical considerations that the Court would need to address
before recognizing judicial takings,” post , at 7. One of
them is simple and simply answered: the assertion that “it is
unclear what remedy a reviewing court could enter after finding a
judicial taking,” post, at 8. Justice Kennedy worries that
we may only be able to mandate compensation. That remedy is even
rare for a legislative or executive taking, and we see no reason
why it would be the exclusive remedy for a judicial taking. If we
were to hold that the Florida Supreme Court had effected an
uncompensated taking in the present case, we would simply reverse
the Florida Supreme Court’s judgment that the Beach and Shore
Preservation Act can be applied to the property in question.
Justice Kennedy’s other point, post, at 7–8—that we will
have to decide when the claim of a judicial taking must be
asserted—hardly presents an awe-inspiring prospect. These, and all
the other “difficulties,” post, at 1, “difficult
questions,” post, at 5, and “practical considerations” post, at 7, that Justice Kennedy worries may perhaps stand in the way of recognizing a judicial taking,
are either nonexistent or insignificant.

															   Finally, we cannot avoid comment upon Justice
Kennedy’s donning of the mantle of judicial restraint—his assertion
that it is we, and not he, who would empower the courts and
encourage their expropriation of private property. He warns that if
judges know that their action is covered by the Takings Clause,
they will issue “sweeping new rule[s] to adjust the rights of
property owners,” comfortable in the knowledge that their
innovations will be preserved upon payment by the State. Post , at 6. That is quite impossible. As we have said, if
we were to hold that the Florida Supreme Court had effected an
uncompensated taking in this case, we would not validate the taking
by ordering Florida to pay compensation. We would simply reverse
the Florida Supreme Court’s judgment that the Beach and Shore
Preservation Act can be applied to the Members’ property. The power
to effect a compensated taking would then reside, where it
has always resided, not in the Florida Supreme Court but in the
Florida Legislature—which could either provide compensation or
acquiesce in the invalidity of the offending features of the Act.
Cf. Davis v. Michigan Dept. of Treasury , 489 U. S. 803 , 817–818
(1989). The only realistic incentive that subjection to the Takings
Clause might provide to any court would be the incentive to get
reversed, which in our experience few judges value.

															   Justice Kennedy, however, while dismissive of
the Takings Clause, places no other constraints on judicial action.
He puts forward some extremely vague applications of Substantive
Due Process, and does not even say that they (whatever they are)
will for sure apply. (“It is thus natural to read the Due
Process Clause as limiting the power of courts to eliminate or
change established property rights,” post , at 3; “courts …
may not have the power to eliminate established property rights by
judicial decision,” post , at 4; “the Due Process Clause
would likely prevent a State from doing by judicial decree what the
Takings Clause forbids it to do by legislative fiat,” post , at 4–5 (internal quotation marks omitted); we must
defer applying the Takings Clause until “[i]f and when future cases
show that the usual principles, including constitutional principles
that constrain the judiciary like due process, are somehow
inadequate to protect property owners,” post , at 10.)

															   Moreover, and more importantly, Justice
Kennedy places no constraints whatever upon this Court.
Not only does his concurrence only think about applying
Substantive Due Process; but because Substantive Due Process is
such a wonderfully malleable concept, see, e.g., Lawrence v. Texas , 539 U. S. 558 , 562
(2003) (referring to “liberty of the person both in its spatial and
in its more transcendent dimensions”), even a firm commitment to
apply it would be a firm commitment to nothing in particular.
Justice Kennedy’s desire to substitute Substantive Due Process for
the Takings Clause suggests, and the rest of what he writes
confirms, that what holds him back from giving the Takings Clause
its natural meaning is not the intrusiveness of applying
it to judicial action, but the definiteness of doing so;
not a concern to preserve the powers of the States’ political
branches, but a concern to preserve this Court’s discretion to say
that property may be taken, or may not be taken, as in the Court’s
view the circumstances suggest. We must not say that we are bound
by the Constitution never to sanction judicial elimination of
clearly established property rights. Where the power of this Court
is concerned, one must never say never. See, e.g. , Vieth v. Jubelirer , 541 U. S. 267 , 302–305
(2004) (plurality opinion); Sosa v. Alvarez-Machain , 542 U. S. 692 , 750–751
(2004) (Scalia, J., concurring in part and concurring in judgment).
The great attraction of Substantive Due Process as a substitute for
more specific constitutional guarantees is that it never means never—because it never means anything precise.

															III

															   Respondents put forward a number
of arguments which contradict, to a greater or lesser degree, the
principle discussed above, that the existence of a taking does not
depend upon the branch of government that effects it. First, in a
case claiming a judicial taking they would add to our normal
takings inquiry a requirement that the court’s decision have no
“fair and substantial basis.” This is taken from our jurisprudence
dealing with the question whether a state-court decision rests upon
adequate and independent state grounds, placing it beyond our
jurisdiction to review. See E. Gressman, K. Geller, S. Shapiro, T.
Bishop, & E. Hartnett, Supreme Court Practice, ch. 3.26, p. 222
(9th ed. 2007). To assure that there is no “evasion” of our
authority to review federal questions, we insist that the
nonfederal ground of decision have “fair support.” Broad River
Power Co. v. South Carolina ex rel. Daniel , 281 U. S. 537 , 540
(1930); see also Ward v. Board of Comm’rs of Love
Cty ., 253 U. S.
17 , 22–23 (1920). A test designed to determine whether there
has been an evasion is not obviously appropriate for determining
whether there has been a taking of property. But if it is to be
extended there it must mean (in the present context) that there is
a “fair and substantial basis” for believing that petitioner’s
Members did not have a property right to future accretions which
the Act would take away. This is no different, we think, from our
requirement that petitioners’ Members must prove the elimination of
an established property right.[ Footnote 9 ]

															   Next, respondents argue that
federal courts lack the knowledge of state law required to decide
whether a judicial decision that purports merely to clarify
property rights has instead taken them. But federal courts must
often decide what state property rights exist in nontakings
contexts, see, e.g., Board of Regents of
State Colleges v. Roth , 408 U. S. 564 , 577–578
(1972) (Due Process Clause). And indeed they must decide it to
resolve claims that legislative or executive action has effected a
taking. For example, a regulation that deprives a property owner of
all economically beneficial use of his property is not a taking if
the restriction “inhere[s] in the title itself, in the restrictions
that background principles of the State’s law of property and
nuisance already place upon land ownership.” Lucas , 505 U.
S., at 1029. A constitutional provision that forbids the
uncompensated taking of property is quite simply insusceptible of
enforcement by federal courts unless they have the power to decide
what property rights exist under state law.

															   Respondents also warn us against depriving
common-law judging of needed flexibility. That argument has little
appeal when directed against the enforcement of a constitutional
guarantee adopted in an era when, as we said supra , at 17,
courts had no power to “change” the common law. But in any case,
courts have no peculiar need of flexibility. It is no more
essential that judges be free to overrule prior cases that
establish property entitlements than that state legislators be free
to revise pre-existing statutes that confer property entitlements,
or agency-heads pre-existing regulations that do so. And insofar as
courts merely clarify and elaborate property entitlements that were
previously unclear, they cannot be said to have taken an
established property right.

															   Finally, the city and county argue that
applying the Takings Clause to judicial decisions would force lower
federal courts to review final state-court judgments, in violation
of the so-called Rooker - Feldman doctrine. See Rooker v. Fidelity Trust Co. , 263 U. S. 413 , 415–416
(1923); District of Columbia Court of Appeals v. Feldman , 460 U. S. 462 , 476
(1983). That does not necessarily follow. The finality principles
that we regularly apply to takings claims, see Williamson
County Regional Planning Comm’n v. Hamilton Bank of
Johnson City, 473 U. S. 172 , 186–194
(1985), would require the claimant to appeal a claimed taking by a
lower court to the state supreme court, whence certiorari would
come to this Court. If certiorari were denied, the claimant would
no more be able to launch a lower-court federal suit against the
taking effected by the state supreme-court opinion than he would be
able to launch such a suit against a legislative or executive
taking approved by the state supreme-court opinion; the matter
would be res judicata. And where the claimant was not a party to
the original suit, he would be able to challenge in federal court
the taking effected by the state supreme-court opinion to the same
extent that he would be able to challenge in federal court a
legislative or executive taking previously approved by a state
supreme-court opinion.

															   For its part, petitioner proposes an
unpredictability test. Quoting Justice Stewart’s concurrence in Hughes v. Washington , 389 U. S. 290 , 296
(1967), petitioner argues that a judicial taking consists of a
decision that “ ‘constitutes a sudden change in state law,
unpredictable in terms of relevant precedents.’ ” See Brief
for Petitioner 17, 34–50. The focus of petitioner’s test is
misdirected. What counts is not whether there is precedent for the
allegedly confiscatory decision, but whether the property right
allegedly taken was established. A “predictability of change” test
would cover both too much and too little. Too much, because a
judicial property decision need not be predictable, so long as it
does not declare that what had been private property under
established law no longer is. A decision that clarifies property
entitlements (or the lack thereof) that were previously unclear
might be difficult to predict, but it does not eliminate
established property rights. And the predictability test covers too
little, because a judicial elimination of established
private-property rights that is foreshadowed by dicta or even by
holdings years in advance is nonetheless a taking. If, for example,
a state court held in one case, to which the complaining property
owner was not a party, that it had the power to limit the acreage
of privately owned real estate to 100 acres, and then, in a second
case, applied that principle to declare the complainant’s 101st
acre to be public property, the State would have taken an acre from
the complainant even though the decision was predictable.

															IV

															   We come at last to petitioner’s
takings attack on the decision below. At the outset, respondents
raise two preliminary points which need not detain us long. The
city and the county argue that petitioner cannot state a cause of
action for a taking because, though the Members own private
property, petitioner itself does not; and that the claim is unripe
because petitioner has not sought just compensation. Neither
objection appeared in the briefs in opposition to the petition for
writ of certiorari, and since neither is jurisdictional,[ Footnote 10 ] we deem both waived.
See this Court’s Rule 15.2; cf. Oklahoma City v. Tuttle , 471
U. S. 808 , 815–816 (1985).

															   Petitioner argues that the
Florida Supreme Court took two of the property rights of the
Members by declaring that those rights did not exist: the right to
accretions, and the right to have littoral property touch the water
(which petitioner distinguishes from the mere right of access to
the water).[ Footnote 11 ]
Under petitioner’s theory, because no prior Florida decision had
said that the State’s filling of submerged tidal lands could have
the effect of depriving a littoral owner of contact with the water
and denying him future accretions, the Florida Supreme Court’s
judgment in the present case abolished those two easements to which
littoral property owners had been entitled. This puts the burden on
the wrong party. There is no taking unless petitioner can show
that, before the Florida Supreme Court’s decision,
littoral-property owners had rights to future accretions and
contact with the water superior to the State’s right to fill in its
submerged land. Though some may think the question close, in our
view the showing cannot be made.

															   Two core principles of Florida property law
intersect in this case. First, the State as owner of the submerged
land adjacent to littoral property has the right to fill that land,
so long as it does not interfere with the rights of the public and
the rights of littoral landowners. See Hayes v. Bowman , 91 So. 2d 795, 799–800 (Fla. 1957) (right to
fill conveyed by State to private party); State ex rel.
Buford v. Tampa , 88 Fla. 196, 210–211, 102 So. 336,
341 (1924) (same). Second, as we described supra , at 3–4,
if an avulsion exposes land seaward of littoral property that had
previously been submerged, that land belongs to the State even if
it interrupts the littoral owner’s contact with the water. See Bryant , 238 So. 2d, at 837, 838–839. The issue here
is whether there is an exception to this rule when the State is the
cause of the avulsion. Prior law suggests there is not. In Martin v. Busch , 93 Fla. 535, 112 So. 274 (1927),
the Florida Supreme Court held that when the State drained water
from a lakebed belonging to the State, causing land that was
formerly below the mean high-water line to become dry land, that
land continued to belong to the State. Id ., at 574, 112
So., at 287; see also Bryant , supra , at 838–839
(analogizing the situation in Martin to an avulsion).
“ ‘The riparian rights doctrine of accretion and
reliction,’ ” the Florida Supreme Court later explained,
“ ‘does not apply to such lands.’ ” Bryant , supra , at 839 (quoting Martin , supra , at
578, 112 So., at 288 (Brown, J., concurring)). This is not
surprising, as there can be no accretions to land that no longer
abuts the water.

															   Thus, Florida law as it stood before the
decision below allowed the State to fill in its own seabed, and the
resulting sudden exposure of previously submerged land was treated
like an avulsion for purposes of ownership. The right to accretions
was therefore subordinate to the State’s right to fill. Thiesen v. Gulf, Florida & Alabama
R. Co. suggests the same result. That case involved a
claim by a riparian landowner that a railroad’s state-authorized
filling of submerged land and construction of tracks upon it
interfered with the riparian landowners’ rights to access and to
wharf out to a shipping channel. The Florida Supreme Court
determined that the claimed right to wharf out did not exist in
Florida, and that therefore only the right of access was
compensable. 75 Fla., at 58–65, 78 So. , at 501–503.
Significantly, although the court recognized that the
riparian-property owners had rights to accretion, see id., at 64–65, 78 So., at 502–503, the only rights it even suggested
would be infringed by the railroad were the right of access (which
the plaintiff had claimed) and the rights of view and use of the
water (which it seems the plaintiff had not claimed), see id., at 58–59, 78, 78 So., at 501, 507.

															   The Florida Supreme Court decision before us
is consistent with these background principles of state property
law. Cf. Lucas , 505 U. S., at 1028–1029; Scranton v. Wheeler , 179 U. S. 141 , 163
(1900). It did not abolish the Members’ right to future accretions,
but merely held that the right was not implicated by the
beach-restoration project, because the doctrine of avulsion
applied. See 998 So. 2d, at 1117, 1120–1121. The Florida
Supreme Court’s opinion describes beach restoration as the
reclamation by the State of the public’s land, just as Martin had described the lake drainage in that case.
Although the opinion does not cite Martin and is not
always clear on this point, it suffices that its characterization
of the littoral right to accretion is consistent with Martin and the other relevant principles of Florida law we
have discussed.

															   What we have said shows that the rule of Sand Key, which petitioner repeatedly invokes, is
inapposite. There the Florida Supreme Court held that an artificial
accretion does not change the right of a littoral-property owner to
claim the accreted land as his own (as long as the owner did not
cause the accretion himself). 512 So. 2d, at 937–938. The
reason Martin did not apply, Sand Key explained,
is that the drainage that had occurred in Martin did not
lower the water level by “ ‘imperceptible degrees,’ ” and
so did not qualify as an accretion. 512 So. 2d, at
940–941.

															   The result under Florida law may seem
counter-intuitive. After all, the Members’ property has been
deprived of its character (and value) as oceanfront property by the
State’s artificial creation of an avulsion. Perhaps state-created
avulsions ought to be treated differently from other avulsions
insofar as the property right to accretion is concerned. But
nothing in prior Florida law makes such a distinction, and Martin suggests, if it does not indeed hold, the contrary.
Even if there might be different interpretations of Martin and other Florida property-law cases that would prevent this
arguably odd result, we are not free to adopt them. The Takings
Clause only protects property rights as they are established under
state law, not as they might have been established or ought to have
been established. We cannot say that the Florida Supreme Court’s
decision eliminated a right of accretion established under Florida
law.

															   Petitioner also contends that the State took
the Members’ littoral right to have their property continually
maintain contact with the water. To be clear, petitioner does not
allege that the State relocated the property line, as would have
happened if the erosion-control line were landward of the
old mean high-water line (instead of identical to it). Petitioner
argues instead that the Members have a separate right for the
boundary of their property to be always the mean high-water line.
Petitioner points to dicta in Sand Key that refers to “the
right to have the property’s contact with the water remain intact,”
512 So. 2d, at 936. Even there, the right was included in the
definition of the right to access, ibid. , which is
consistent with the Florida Supreme Court’s later description that
“there is no independent right of contact with the water” but it
“exists to preserve the upland owner’s core littoral right of
access to the water,” 998 So. 2d, at 1119. Petitioner’s expansive interpretation of the dictum in Sand
Key would cause it to contradict the clear Florida law
governing avulsion. One cannot say that the Florida Supreme Court
contravened established property law by rejecting it.[ Footnote 12 ] V Because the
Florida Supreme Court’s decision did not contravene the established
property rights of petitioner’s Members, Florida has not violated
the Fifth and Fourteenth Amendments. The judgment of the Florida
Supreme Court is therefore affirmed. It is so ordered. Justice Stevens
took no part in the decision of this case. Footnote
1 Many cases and statutes use
“riparian” to mean abutting any body of water. The Florida Supreme
Court, however, has adopted a more precise usage whereby “riparian”
means abutting a river or stream and “littoral” means abutting an
ocean, sea, or lake. Walton Cty. v. Stop the Beach
Renourishment, Inc. , 998 So. 2d 1102, 1105, n. 3 (2008).
When speaking of the Florida law applicable to this case, we follow
the Florida Supreme Court’s terminology. Footnote
2 We assume, as the parties
agree we should, that in this case the erosion-control line is the
pre-existing mean high-water line. Tr. of Oral Arg. 11–12.
Respondents concede that, if the erosion-control line were
established landward of that, the State would have taken property.
Brief for Respondent Department et al. 15; Brief for
Respondent Walton County et al. 6. Footnote
3 The Florida Supreme Court
seemingly took the question to refer to constitutionality under the
Florida Constitution, which contains a clause similar to the
Takings Clause of the Federal Constitution. Compare Fla. Const.,
Art. X, §6, cl. (a), with U. S. Const., Amdt. 5. Footnote
4 We ordinarily do not consider
an issue first presented to a state court in a petition for
rehearing if the state court did not address it. See Adams v. Robertson , 520 U. S. 83 , 89, n. 3
(1997) (per curiam) . But where the state-court decision
itself is claimed to constitute a violation of federal law, the
state court’s refusal to address that claim put forward in a
petition for rehearing will not bar our review. See Brinkerhoff-Faris Trust & Sav. Co. v. Hill , 281 U. S. 673 ,
677–678 (1930). Footnote
5 We thus need not resolve
whether the right of accretion is an easement, as petitioner
claims, or, as Florida claims, a contingent future
interest. Footnote
6 Thus, the landmark case of Penn Central Trans. Co. v. New York, 438 U. S. 104 , 124–128,
138 (1978), held that there was no taking only after setting forth
a multi-factor test for determining whether a regulation
restricting the use of property effects a taking. Footnote
7 See Smith v. Spisak , 558 U. S. ___, ___ (2010) (slip op., at 9–16)
(ineffective assistance of counsel); Quilloin v. Walcott , 434 U. S. 246 , 255
(1978) (equal protection); Mercer v. Theriot , 377 U. S. 152 ,
155 (1964) (per curiam) (right to judgment notwithstanding
the verdict where evidence is lacking). Footnote
8 See Spisak, supra ,
at ___ (slip op., at 16). Quilloin ’s cryptic rejection of
the claim “[u]nder any standard of review,” 434 U. S., at 256,
could only refer to the various levels of scrutiny—such as “strict”
or “rational basis”—that we had applied to equal-protection claims,
see Loving v. Virginia , 388 U. S. 1 , 8–9 (1967).
And in Mercer , which found the evidence “sufficient under
any standard which might be appropriate—state or federal,” 377 U.
S., at 156, one of the parties had argued for an established
standard under Louisiana law, and the other for an established
federal standard. Compare Brief for Petitioner in Mercer v. Theriot , O. T. 1963, No. 336, pp. 18–22, with
Brief for Respondent in Mercer v. Theriot ,
p. 5. Footnote
9 Justice Breyer complains that
we do not set forth “procedural limitations or canons of deference”
to restrict federal-court review of state-court property decisions.
See post , at 2. (1) To the extent this is true it is
unsurprising, but (2) fundamentally, it is false: (1) It is true
that we make our own determination, without deference to state
judges, whether the challenged decision deprives the claimant of an
established property right. That is unsurprising because it is what
this Court does when determining state-court compliance with all constitutional imperatives. We do not defer to the
judgment of state judges in determining whether, for example, a
state-court decision has deprived a defendant of due process or
subjected him to double jeopardy. (2) The test we have adopted,
however (deprivation of an established property right),
contains within itself a considerable degree of deference to state
courts. A property right is not established if there is doubt about
its existence; and when there is doubt we do not make our own
assessment but accept the determination of the state
court. Footnote
10 Petitioner meets the two
requirements necessary for an association to assert the Article III
standing of its Members. See Food and Commercial Workers v. Brown Group, Inc. , 517 U. S. 544 , 555–557
(1996). And the claim here is ripe insofar as Article III standing
is concerned, since (accepting petitioner’s version of Florida law
as true) petitioner has been deprived of property. Footnote
11 Petitioner raises two other
claims that we do not directly address. First, petitioner tries to
revive its challenge to the beach restoration project, contending
that it (rather than the Florida Supreme Court’s opinion)
constitutes a taking. Petitioner’s arguments on this score are
simply versions of two arguments it makes against the Florida
Supreme Court’s opinion: that the Department has replaced the
Members’ littoral property rights with versions that are inferior
because statutory; and that the Members previously had the right to
have their property contact the water. We reject both, infra , at 28–29, and n. 12. Second, petitioner attempts to
raise a challenge to the Act as a deprivation of property without
due process. Petitioner did not raise this challenge before the
Florida Supreme Court, and only obliquely raised it in the petition
for certiorari. We therefore do not reach it. See Adams ,
520 U. S., at 86–87. Footnote
12 Petitioner also argues that
the Members’ other littoral rights have been infringed because the
Act replaces their common-law rights with inferior statutory
versions. Petitioner has not established that the statutory
versions are inferior; and whether the source of a property right
is the common law or a statute makes no difference, so long as the
property owner continues to have what he previously had. OPINION OF KENNEDY, J. STOP THE BEACH RENOURISHMENT, INC. V. FLOR-IDA DEPT. OF
ENVIRONMENTAL PROTECTION 560 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1151 STOP THE BEACH RENOURISHMENT, INC., PETITIONER v. FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
et al.

															on writ of certiorari to the supreme court of
florida

															[June 17, 2010]

															   Justice Kennedy, with whom
Justice Sotomayor joins, concurring in part and concurring in the
judgment.

															   The Court’s analysis of the
principles that control ownership of the land in question, and of
the rights of petitioner’s members as adjacent owners, is correct
in my view, leading to my joining Parts I, IV, and V of the Court’s
opinion. As Justice Breyer observes, however, this case does not
require the Court to determine whether, or when, a judicial
decision determining the rights of property owners can violate the
Takings Clause of the Fifth Amendment of the United States
Constitution. This separate opinion notes certain difficulties that
should be considered before accepting the theory that a judicial
decision that eliminates an “established property right,” ante , at 21, constitutes a violation of the Takings
Clause.

															   The Takings Clause is an essential part of the
constitutional structure, for it protects private property from
expropriation without just compensation; and the right to own and
hold property is necessary to the exercise and preservation of
freedom. The right to retain property without the fact or even the
threat of that sort of expropriation is, of course, applicable to
the States under the Due Process Clause of the Fourteenth
Amendment. Chicago, B. & Q. R. Co. v. Chicago , 166 U. S. 226 , 239
(1897).

															   The right of the property owner is subject,
however, to the rule that the government does have power to take
property for a public use, provided that it pays just compensation.
See First English Evangelical Lutheran Church of Glendale v. County of Los Angeles , 482 U. S. 304 , 314–315
(1987). This is a vast governmental power. And typically,
legislative bodies grant substantial discretion to executive
officers to decide what property can be taken for authorized
projects and uses. As a result, if an authorized executive agency
or official decides that Blackacre is the right place for a fire
station or Greenacre is the best spot for a freeway interchange,
then the weight and authority of the State are used to take the
property, even against the wishes of the owner, who must be
satisfied with just compensation.

															   In the exercise of their duty to protect the
fisc, both the legislative and executive branches monitor, or
should monitor, the exercise of this substantial power. Those
branches are accountable in their political capacity for the proper
discharge of this obligation.

															   To enable officials to better exercise this
great power in a responsible way, some States allow their officials
to take a second look after property has been condemned and a jury
returns a verdict setting the amount of just compensation. See, e.g., Cal. Civ. Proc. Code Ann. §1268.510 (2007). If the
condemning authority, usually acting through the executive, deems
the compensation too high to pay for the project, it can decide not
to take the property at all. The landowner is reimbursed for
certain costs and expenses of litigation and the property remains
in his or her hands. See, e.g., §1268.610(a).

															   This is just one aspect of the exercise of the
power to select what property to condemn and the responsibility to
ensure that the taking makes financial sense from the State’s point
of view. And, as a matter of custom and practice, these are matters
for the political branches—the legislature and the executive—not
the courts. See First English , supra , at 321
(“[T]he decision to exercise the power of eminent domain is a
legislative function”).

															   If a judicial decision, as opposed to an act
of the executive or the legislature, eliminates an established
property right, the judgment could be set aside as a deprivation of
property without due process of law. The Due Process Clause, in
both its substantive and procedural aspects, is a central
limitation upon the exercise of judicial power. And this Court has
long recognized that property regulations can be invalidated under
the Due Process Clause. See, e.g., Lingle v. Chevron U. S. A. Inc. , 544 U. S. 528 , 542
(2005); Goldblatt v. Hempstead , 369 U. S. 590 , 591,
592–593 (1962); Demorest v. City Bank Farmers Trust
Co. , 321 U. S.
36 , 42–43 (1944); Broad River Power Co. v. South
Carolina ex rel. Daniel , 281 U. S. 537 , 539,
540–541 (1930); Washington ex rel. Seattle Title Trust Co. v. Roberge , 278 U. S. 116 , 121
(1928); Nectow v. Cambridge , 277 U. S. 183 , 188
(1928); Village of Euclid v. Ambler Realty Co. , 272 U. S. 365 ,
395 (1926); see also Pennsylvania Coal Co. v. Mahon , 260 U. S. 393 , 413 (1922) (there must
be limits on government’s ability to diminish property values by
regulation “or the contract and due process clauses are gone”). It
is thus natural to read the Due Process Clause as limiting the
power of courts to eliminate or change established property
rights.

															   The Takings Clause also protects property
rights, and it “operates as a conditional limitation, permitting
the government to do what it wants so long as it pays the charge.” Eastern Enterprises v. Apfel , 524 U. S. 498 , 545
(1998) (Kennedy, J., concurring in judgment and dissenting in
part). Unlike the Due Process Clause, therefore, the Takings Clause
implicitly recognizes a governmental power while placing limits
upon that power. Thus, if the Court were to hold that a judicial
taking exists, it would presuppose that a judicial decision
eliminating established property rights is “otherwise
constitutional” so long as the State compensates the aggrieved
property owners. Ibid. There is no clear authority for
this proposition.

															   When courts act without direction from the
executive or legislature, they may not have the power to eliminate
established property rights by judicial decision. “Given that the
constitutionality” of a judicial decision altering property rights
“appears to turn on the legitimacy” of whether the court’s judgment
eliminates or changes established property rights “rather than on
the availability of compensation, … the more appropriate
constitutional analysis arises under general due process principles
rather than under the Takings Clause.” Ibid. Courts,
unlike the executive or legislature, are not designed to make
policy decisions about “the need for, and likely effectiveness of,
regulatory actions.” Lingle , supra , at 545. State
courts generally operate under a common-law tradition that allows
for incremental modifications to property law, but “this tradition
cannot justify a carte blanch judicial authority to change
property definitions wholly free of constitutional limitations.”
Walston, The Constitution and Property: Due Process, Regulatory
Takings, and Judicial Takings, 2001 Utah L. Rev. 379, 435.

															   The Court would be on strong footing in ruling
that a judicial decision that eliminates or substantially changes
established property rights, which are a legitimate expectation of
the owner, is “arbitrary or irrational” under the Due Process
Clause. Lingle , 544 U. S., at 542; see id. , at
548–549 (Kennedy, J., concurring); see also Perry v. Sindermann , 408 U. S. 593 , 601
(1972) (“ ‘[P]roperty’ ” interests protected by the Due
Process Clauses are those “that are secured by ‘existing rules or
understandings’ ” (quoting Board of Regents of State
Colleges v. Roth , 408 U. S. 564 , 577
(1972))). Thus, without a judicial takings doctrine, the Due
Process Clause would likely prevent a State from doing “by judicial
decree what the Takings Clause forbids it to do by legislative
fiat.” Ante, at 8. The objection that a due process claim
might involve close questions concerning whether a judicial decree
extends beyond what owners might have expected is not a sound
argument; for the same close questions would arise with respect to
whether a judicial decision is a taking. See Apfel , supra , at 541 (opinion of Kennedy, J.) (“Cases attempting
to decide when a regulation becomes a taking are among the most
litigated and perplexing in current law”); Penn Central Transp.
Co. v. New York City , 438 U. S. 104 , 123
(1978) (“The question of what constitutes a ‘taking’ for purposes
of the Fifth Amendment has proved to be a problem of considerable
difficulty”).

															   To announce that courts too can effect a
taking when they decide cases involving property rights, would
raise certain difficult questions. Since this case does not require
those questions to be addressed, in my respectful view, the Court
should not reach beyond the necessities of the case to announce a
sweeping rule that court decisions can be takings, as that phrase
is used in the Takings Clause. The evident reason for recognizing a
judicial takings doctrine would be to constrain the power of the
judicial branch. Of course, the judiciary must respect private
ownership. But were this Court to say that judicial decisions
become takings when they overreach, this might give more power to
courts, not less.

															   Consider the instance of litigation between
two property owners to determine which one bears the liability and
costs when a tree that stands on one property extends its roots in
a way that damages adjacent property. See, e.g., Fancher v. Fagella, 274 Va. 549, 650 S. E.
2d 519 (2007). If a court deems that, in light of increasing
urbanization, the former rule for allocation of these costs should
be changed, thus shifting the rights of the owners, it may well
increase the value of one property and decrease the value of the
other. This might be the type of incremental modification under
state common law that does not violate due process, as owners may
reasonably expect or anticipate courts to make certain changes in
property law. The usual due process constraint is that courts
cannot abandon settled principles. See, e.g., Rogers v. Tennessee , 532 U. S. 451 , 457
(2001) (citing Bouie v. City of Columbia , 378 U. S. 347 ,
354 (1964)); Apfel , 524 U. S., at 548–549 (opinion of
Kennedy, J.); see also Perry , supra , at 601; Roth , supra , at 577.

															   But if the state court were deemed to be
exercising the power to take property, that constraint would be
removed. Because the State would be bound to pay owners for takings
caused by a judicial decision, it is conceivable that some judges
might decide that enacting a sweeping new rule to adjust the rights
of property owners in the context of changing social needs is a
good idea. Knowing that the resulting ruling would be a taking, the
courts could go ahead with their project, free from constraints
that would otherwise confine their power. The resulting judgment as
between the property owners likely could not be set aside by some
later enactment. See Plaut v. Spendthrift Farm,
Inc. , 514 U. S.
211 , 217 (1995) (leaving open whether legislation reopening
final judgments violates Due Process Clause). And if the litigation
were a class action to decide, for instance, whether there are
public rights of access that diminish the rights of private
ownership, a State might find itself obligated to pay a substantial
judgment for the judicial ruling. Even if the legislature were to
subsequently rescind the judicial decision by statute, the State
would still have to pay just compensation for the temporary taking
that occurred from the time of the judicial decision to the time of
the statutory fix. See First English , 482 U. S., at
321.

															   The idea, then, that a judicial takings
doctrine would constrain judges might just well have the opposite
effect. It would give judges new power and new assurance that
changes in property rights that are beneficial, or thought to be
so, are fair and proper because just compensation will be paid. The
judiciary historically has not had the right or responsibility to
say what property should or should not be taken.

															   Indeed, it is unclear whether the Takings
Clause was understood, as a historical matter, to apply to judicial
decisions. The Framers most likely viewed this Clause as applying
only to physical appropriation pursuant to the power of eminent
domain. See Lucas v. South Carolina Coastal
Council , 505
U. S. 1003 , 1028, n. 15 (1992). And it appears these physical
appropriations were traditionally made by legislatures. See 3 J.
Story, Commentaries on the Constitution of the United States §1784,
p. 661 (1833). Courts, on the other hand, lacked the power of
eminent domain. See 1 W. Blackstone, Commentaries 135 (W. Lewis ed.
1897). The Court’s Takings Clause jurisprudence has expanded beyond
the Framers’ understanding, as it now applies to certain
regulations that are not physical appropriations. See Lucas , supra , at 1014 (citing Mahon , 260 U. S. 393 ). But the Court should
consider with care the decision to extend the Takings Clause in a
manner that might be inconsistent with historical practice.

															   There are two additional practical
considerations that the Court would need to address before
recognizing judicial takings. First, it may be unclear in certain
situations how a party should properly raise a judicial takings
claim. “[I]t is important to separate out two judicial actions—the
decision to change current property rules in a way that would
constitute a taking, and the decision to require compensation.”
Thompson, Judicial Takings, 76 Va. L. Rev. 1449, 1515 (1990).
In some contexts, these issues could arise separately. For
instance, assume that a state-court opinion explicitly holds that
it is changing state property law, or that it asserts that is not
changing the law but there is no “fair or substantial basis” for
this statement. Broad River , 281 U. S., at 540. (Most of
these cases may arise in the latter posture, like inverse
condemnation claims where the State says it is not taking property
and pays no compensation.) Call this Case A. The only issue in Case
A was determining the substance of state property law. It is
doubtful that parties would raise a judicial takings claim on
appeal, or in a petition for a writ of certiorari, in Case A, as
the issue would not have been litigated below. Rather, the party
may file a separate lawsuit—Case B—arguing that a taking occurred
in light of the change in property law made by Case A. After all,
until the state court in Case A changes the law, the party will not
know if his or her property rights will have been eliminated. So
res judicata probably would not bar the party from litigating the
takings issue in Case B.

															   Second, it is unclear what remedy a reviewing
court could enter after finding a judicial taking. It appears under
our precedents that a party who suffers a taking is only entitled
to damages, not equitable relief: The Court has said that
“[e]quitable relief is not available to enjoin an alleged taking of
private property for a public use … when a suit for compensation
can be brought against the sovereign subsequent to the taking,” Ruckelshaus v. Monsanto Co. , 467 U. S. 986 , 1016
(1984), and the Court subsequently held that the Takings Clause
requires the availability of a suit for compensation against the
States, First English , supra , at 321–322. It
makes perfect sense that the remedy for a Takings Clause violation
is only damages, as the Clause “does not proscribe the taking of
property; it proscribes taking without just compensation.” Williamson County Regional Planning Comm’n v. Hamilton
Bank of Johnson City , 473 U. S. 172 , 194
(1985).

															   It is thus questionable whether reviewing
courts could invalidate judicial decisions deemed to be judicial
takings; they may only be able to order just compensation. In the
posture discussed above where Case A changes the law and Case B
addresses whether that change is a taking, it is not clear how the
Court, in Case B, could invalidate the holding of Case A. If a
single case were to properly address both a state court’s change in
the law and whether the change was a taking, the Court might be
able to give the state court a choice on how to proceed if there
were a judicial taking. The Court might be able to remand and let
the state court determine whether it wants to insist on changing
its property law and paying just compensation or to rescind its
holding that changed the law. Cf. First English , 482 U.
S., at 321 (“Once a court determines that a taking has occurred,
the government retains the whole range of options already
available—amendment of the regulation, withdrawal of the
invalidated regulation, or exercise of eminent domain”). But that
decision would rest with the state court, not this Court; so the
state court could still force the State to pay just compensation.
And even if the state court decided to rescind its decision that
changed the law, a temporary taking would have occurred in the
interim. See ibid. These difficult issues are some of the reasons
why the Court should not reach beyond the necessities of the case
to recognize a judicial takings doctrine. It is not wise, from an
institutional standpoint, to reach out and decide questions that
have not been discussed at much length by courts and commentators.
This Court’s dicta in Williamson County , supra ,
at 194–197, regarding when regulatory takings claims become ripe,
explains why federal courts have not been able to provide much
analysis on the issue of judicial takings. See San Remo Hotel,
L. P. v. City and County of San Francisco , 545 U. S. 323 ,
351 (2005) (Rehnquist, C. J., concurring in judgment)
(“ Williamson County ’s state-litigation rule has created
some real anomalies, justifying our revisiting the issue”). Until Williamson County is reconsidered, litigants will have to
press most of their judicial takings claims before state courts,
which are “presumptively competent … to adjudicate claims arising
under the laws of the United States.” Tafflin v. Levitt , 493
U. S. 455 , 458 (1990). If and when future cases show that the
usual principles, including constitutional principles that
constrain the judiciary like due process, are somehow inadequate to
protect property owners, then the question whether a judicial
decision can effect a taking would be properly presented. In the
meantime, it seems appropriate to recognize that the substantial
power to decide whose property to take and when to take it should
be conceived of as a power vested in the political branches and
subject to political control. OPINION OF BREYER, J. STOP THE BEACH RENOURISHMENT, INC. V. FLOR-IDA DEPT. OF
ENVIRONMENTAL PROTECTION 560 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1151 STOP THE BEACH RENOURISHMENT, INC., PETITIONER v. FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
et al.

															on writ of certiorari to the supreme court of
florida

															[June 17, 2010]

															   Justice Breyer, with whom Justice
Ginsburg joins, concurring in part and concurring in the
judgment.

															   I agree that no unconstitutional
taking of property occurred in this case, and I therefore join
Parts I, IV, and V of today’s opinion. I cannot join Parts II and
III, however, for in those Parts the plurality unnecessarily
addresses questions of constitutional law that are better left for
another day.

															   In Part II of its opinion, see ante, at 7–10, the plurality concludes that courts, including federal
courts, may review the private property law decisions of state
courts to determine whether the decisions unconstitutionally take
“private property” for “public use without just compensation.” U.
S. Const., Amdt. 5. And in doing so it finds “irrelevant” that the
“particular state actor ” that takes private property (or
unconstitutionally redefines state property law) is the judicial
branch, rather than the executive or legislative branch. Ante , at 10; cf. Hughes v. Washington , 389 U. S. 290 ,
296–298 (1967) (Stewart, J., concurring).

															   In Part III, the plurality determines that it
is “not obviously appropriate” to apply this Court’s “ ‘fair
and substantial basis’ ” test, familiar from our adequate and
independent state ground jurisprudence, when evaluating whether a
state-court property decision enacts an unconstitutional taking. Ante , at 21. The plurality further concludes that a
state-court decision violates the Takings Clause not when the
decision is “unpredictab[le]” on the basis of prior law, but rather
when the decision takes private property rights that are
“established.” Ante, at 23–24. And finally, it concludes
that all those affected by a state-court property law decision can
raise a takings claim in federal court, but for the losing
party in the initial state-court proceeding, who can only raise her
claim (possibly for the first time) in a petition for a writ of
certiorari here. Ante, at 23.

															    I do not claim that all of these conclusions
are unsound. I do not know. But I do know that, if we were to
express our views on these questions, we would invite a host of
federal takings claims without the mature consideration of
potential procedural or substantive legal principles that might
limit federal interference in matters that are primarily the
subject of state law. Property owners litigate many thousands of
cases involving state property law in state courts each year. Each
state-court property decision may further affect numerous nonparty
property owners as well. Losing parties in many state-court cases
may well believe that erroneous judicial decisions have deprived
them of property rights they previously held and may consequently
bring federal takings claims. And a glance at Part IV makes clear
that such cases can involve state property law issues of
considerable complexity. Hence, the approach the plurality would
take today threatens to open the federal court doors to
constitutional review of many, perhaps large numbers of, state-law
cases in an area of law familiar to state, but not federal, judges.
And the failure of that approach to set forth procedural
limitations or canons of deference would create the distinct
possibility that federal judges would play a major role in the
shaping of a matter of significant state interest—state property
law.

															   The plurality criticizes me for my cautious
approach, and states that I “cannot decide that petitioner’s claim
fails without first deciding what a valid claim would consist of.” Ante, at 12. But, of course, courts frequently find it
possible to resolve cases—even those raising constitutional
questions—without specifying the precise standard under which a
party wins or loses. See, e.g., Smith v. Spisak ,
558 U. S. ___, ___ (2010) (slip op., at 16) (“With or without such
deference, our conclusion is the same”); Quilloin v. Walcott , 434 U. S. 246 , 256
(1978) (rejecting an equal protection claim “[u]nder any standard
of review”); Mercer v. Theriot , 377 U. S. 152 , 156
(1964) (per curiam) (finding evidence sufficient to
support a verdict “under any standard”). That is simply what I
would do here.

															   In the past, Members of this Court have warned
us that, when faced with difficult constitutional questions, we
should “confine ourselves to deciding only what is necessary to the
disposition of the immediate case.” Whitehouse v. Illinois Central R. Co. , 349 U. S. 366 , 373
(1955); see also Lyng v. Northwest Indian Cemetery
Protective Assn. , 485 U. S. 439 , 445
(1988) (“A fundamental and longstanding principle of judicial
restraint requires that courts avoid reaching constitutional
questions in advance of the necessity of deciding them”); Ashwander v. TVA , 297 U. S. 288 , 346–347
(1936) (Brandeis, J., concurring) (“The Court will not anticipate a
question of constitutional law in advance of the necessity of
deciding it. It is not the habit of the Court to decide questions
of a constitutional nature unless absolutely necessary to a
decision of the case” (citations and internal quotation marks
omitted)). I heed this advice here. There is no need now to decide
more than what the Court decides in Parts IV and V, namely, that
the Florida Supreme Court’s decision in this case did not amount to
a “judicial taking.”