Stop Beach Renourishment, Inc. v. Florida Department of Environmental Protection , 130 S. Ct. 2592 ( 2010 )

(Slip Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
STOP THE BEACH RENOURISHMENT, INC. v. FLOR-
IDA DEPARTMENT OF ENVIRONMENTAL PROTEC-
TION ET AL.
CERTIORARI TO THE SUPREME COURT OF FLORIDA
No. 08–1151. Argued December 2, 2009—Decided June 17, 2010
Florida owns in trust for the public the land permanently submerged
beneath navigable waters and the foreshore. The mean high-water
line is the ordinary boundary between private beachfront, or littoral
property, and state-owned land. Littoral owners have, inter alia,
rights to have access to the water, to use the water for certain pur
poses, to have an unobstructed view of the water, and to receive ac
cretions and relictions (collectively, accretions) to the littoral prop
erty. An accretion occurs gradually and imperceptibly, while a
sudden change is an avulsion. The littoral owner automatically takes
title to dry land added to his property by accretion. With avulsion,
however, the seaward boundary of littoral property remains what it
was: the mean high-water line before the event. Thus, when an avul
sion has added new land, the littoral owner has no right to subse
quent accretions, because the property abutting the water belongs to
the owner of the seabed (ordinarily the State).
Florida’s Beach and Shore Preservation Act establishes procedures
for depositing sand on eroded beaches (restoration) and maintaining
the deposited sand (nourishment). When such a project is under
taken, the State entity that holds title to the seabed sets a fixed “ero
sion control line” to replace the fluctuating mean high-water line as
the boundary between littoral and state property. Once the new line
is recorded, the common law ceases to apply. Thereafter, when accre
tion moves the mean high-water line seaward, the littoral property
remains bounded by the permanent erosion-control line.
Respondents the city of Destin and Walton County sought permits
to restore 6.9 miles of beach eroded by several hurricanes, adding
about 75 feet of dry sand seaward of the mean high-water line (to be
2 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-
IDA DEPT. OF ENVIRONMENTAL PROTECTION
Syllabus
denominated the erosion-control line). Petitioner, a nonprofit corpo
ration formed by owners of beachfront property bordering the project
(hereinafter Members) brought an unsuccessful administrative chal
lenge. Respondent the Florida Department of Environmental Protec
tion approved the permits, and this suit followed. The State Court of
Appeal concluded that the Department’s order had eliminated the
Members’ littoral rights (1) to receive accretions to their property and
(2) to have their property’s contact with the water remain intact.
Concluding that this would be an unconstitutional taking and would
require an additional administrative requirement to be met, it set
aside the order, remanded the proceeding, and certified to the Florida
Supreme Court the question whether the Act unconstitutionally de
prived the Members of littoral rights without just compensation. The
State Supreme Court answered “no” and quashed the remand, con
cluding that the Members did not own the property supposedly
taken. Petitioner sought rehearing on the ground that the Florida
Supreme Court’s decision effected a taking of the Members’ littoral
rights contrary to the Fifth and Fourteenth Amendments; rehearing
was denied.
Held: The judgment is affirmed.
998 So. 2d 1102, affirmed.
JUSTICE SCALIA delivered the opinion of the Court with respect to
Parts I, IV, and V, concluding that the Florida Supreme Court did not
take property without just compensation in violation of the Fifth and
Fourteenth Amendments. Pp. 24–29.
(a) Respondents’ arguments that petitioner does not own the prop
erty and that the case is not ripe were not raised in the briefs in op
position and thus are deemed waived. Pp. 24–25.
(b) There can be no taking unless petitioner can show that, before
the Florida Supreme Court’s decision, littoral property owners had
rights to future accretions and to contact with the water superior to
the State’s right to fill in its submerged land. That showing cannot
be made. Two core Florida property-law principles intersect here.
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 of littoral landowners. Second, if an
avulsion exposes land seaward of littoral property that had previ
ously been submerged, that land belongs to the State even if it inter
rupts the littoral owner’s contact with the water. Prior Florida law
suggests that there is no exception to this rule when the State causes
the avulsion. 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 ownership purposes. The right to accretions was therefore subor
Cite as: 560 U. S. ____ (2010) 3
Syllabus
dinate to the State’s right to fill. Pp. 25–27.
(c) The decision below is consistent with these principles. Cf. Lucas
v. South Carolina Coastal Council, 505 U. S. 1003, 1028–1029. It did
not abolish the Members’ right to future accretions, but merely held
that the right was not implicated by the beach-restoration project be
cause of the doctrine of avulsion. Relying on dicta in the Florida Su
preme Court’s Sand Key decision, petitioner contends that the State
took the Members’ littoral right to have the boundary always be the
mean high-water line. But petitioner’s interpretation of that dictum
contradicts the clear law governing avulsion. One cannot say the
Florida Supreme Court contravened established property law by re
jecting it. Pp. 27–29.
JUSTICE SCALIA, joined by THE CHIEF JUSTICE, JUSTICE THOMAS, and
JUSTICE ALITO, concluded in Parts II and III that if a court declares
that what was once an established right of private property no longer
exists, it has taken that property in violation of the Takings Clause.
Pp. 7–24.
(a) Though the classic taking is a transfer of property by eminent
domain, the Clause applies to other state actions that achieve the
same thing, including those that recharacterize as public property
what was previously private property, see Webb’s Fabulous Pharma
cies, Inc. v. Beckwith, 449 U. S. 155, 163–165. The Clause is not ad
dressed to the action of a specific branch or branches. It is concerned
simply with the act, not with the governmental actor. This Court’s
precedents provide no support for the proposition that takings ef
fected by the judicial branch are entitled to special treatment, and in
fact suggest the contrary. See PruneYard Shopping Center v. Robins,
447 U. S. 74, Webb’s Fabulous Pharmacies, supra. Pp. 7–20.
(b) For a judicial taking, respondents would add to the normal tak
ings inquiry the requirement that the court’s decision have no “fair
and substantial basis.” This test is not obviously appropriate, but it
is no different in this context from the requirement that the property
owner prove an established property right. Respondents’ additional
arguments—that federal courts lack the knowledge of state law re
quired to decide whether a state judicial decision purporting to clarify
property rights has instead taken them; that common-law judging
should not be deprived of needed flexibility; and that applying the
Takings Clause to judicial decisions would force lower federal courts
to review final state-court judgments, in violation of the Rooker-
Feldman doctrine, see Rooker v. Fidelity Trust Co., 263 U. S. 413,
415–416, District of Columbia Court of Appeals v. Feldman, 460 U. S.
462, 476—are unpersuasive. And petitioner’s proposed “unpredict
ability test”—that a judicial taking consists of a decision that “consti
tutes a sudden change in state law, unpredictable in terms of rele
4 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-
IDA DEPT. OF ENVIRONMENTAL PROTECTION
Syllabus
vant precedents,” Hughes v. Washington, 389 U. S. 290, 296 (Stewart,
J., concurring)—is misdirected. What counts is not whether there is
precedent for the allegedly confiscatory decision, but whether the
property right allegedly taken was well established. Pp. 20–24.
JUSTICE KENNEDY, joined by JUSTICE SOTOMAYOR, agreed that the
Florida Supreme Court did not take property without just compensa
tion, but concluded that this case does not require the Court to de
termine whether, or when, a judicial decision determining property
owners’ rights can violate the Takings Clause. If and when future
cases show that the usual principles, including constitutional ones
that constrain the judiciary like due process, are inadequate to pro
tect property owners, then the question whether a judicial decision
can effect a taking would be properly presented. Pp. 1–10.
JUSTICE BREYER, joined by JUSTICE GINSBURG, agreed that no un
constitutional taking occurred here, but concluded that it is unneces
sary to decide more than that to resolve this case. Difficult questions
of constitutional law—e.g., whether federal courts may review a state
court’s decision to determine if it unconstitutionally takes private
property without compensation, and what the proper test is for evalu
ating whether a state-court property decision enacts an unconstitu
tional taking—need not be addressed in order to dispose “of the im
mediate case.” Whitehouse v. Illinois Central R. Co., 349 U. S. 366,
373. Such questions are better left for another day. Pp. 1–3.
SCALIA, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, IV, and V, in which ROB-
ERTS, C. J., and KENNEDY, THOMAS, GINSBURG, BREYER, ALITO, and SO-
TOMAYOR, JJ., joined, and an opinion with respect to Parts II and III, in
which ROBERTS, C. J., and THOMAS and ALITO, JJ., joined. KENNEDY, J.,
filed an opinion concurring in part and concurring in the judgment, in
which SOTOMAYOR, J., joined. BREYER, J., filed an opinion concurring in
part and concurring in the judgment, in which GINSBURG, J., joined.
STEVENS, J., took no part in the decision of the case.
Cite as: 560 U. S. ____ (2010) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
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
2 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-
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Opinion of the Court
public the land permanently submerged beneath naviga
ble 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 beach
front, or littoral1 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. Com
pare 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–
——————
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.
Cite as: 560 U. S. ____ (2010) 3
Opinion of the Court
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, Wa
ter 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 oc
curred 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 auto
matically 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, Commen
taries 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
4 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-
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Opinion of the Court
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 nour
ishment projects,” §161.088, designed to deposit sand on
eroded beaches (restoration) and to maintain the deposited
sand (nourishment). §§161.021(3), (4). A local govern
ment 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 Trus
tees 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 under
taken,” 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.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 sub
merged land. See App. 87–88. The fixed erosion-control
line replaces the fluctuating mean high-water line as the
——————
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 prop
erty. Brief for Respondent Department et al. 15; Brief for Respondent
Walton County et al. 6.
Cite as: 560 U. S. ____ (2010) 5
Opinion of the Court
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 prop
erty 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 sea
ward of the mean high-water line (to be denominated the
erosion-control line). The Department issued a notice of
6 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-
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Opinion of the Court
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 administra
tive 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 litto
ral rights without just compensation?”3 998 So. 2d, at
1105 (footnotes omitted).
——————
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.
Cite as: 560 U. S. ____ (2010) 7
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Opinion of SCALIA, J.
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 con
cluded 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.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 compensa
tion,” 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.5 See Yates v. Milwaukee, 10 Wall. 497,
504 (1871). Moreover, though the classic taking is a trans
——————
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 for
ward in a petition for rehearing will not bar our review. See Brinker
hoff-Faris Trust & Sav. Co. v. Hill, 281 U. S. 673, 677–678 (1930).
5 We thus need not resolve whether the right of accretion is an ease
ment, as petitioner claims, or, as Florida claims, a contingent future
interest.
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Opinion of SCALIA, J.
fer 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 perma
nent physical occupation, Loretto v. Teleprompter Manhat
tan CATV Corp., 458 U. S. 419, 425–426 (1982), or de
prives 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 ad
dressed to the action of a specific branch or branches. It is
concerned simply with the act, and not with the govern
mental actor (“nor shall private property be taken” (em
phasis added)). There is no textual justification for saying
that the existence or the scope of a State’s power to expro
priate private property without just compensation varies
according to the branch of government effecting the expro
priation. 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).
Cite as: 560 U. S. ____ (2010) 9
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Opinion of SCALIA, J.
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 appli
cation 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 constitu
tional 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 sug
gests that the same analysis applicable to taking by con
stitutional 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 regis
try of the Circuit Court of Seminole County, to be distrib
uted in satisfaction of claims approved by a receiver. The
Florida Supreme Court construed an applicable statute to
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Opinion of SCALIA, J.
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 rechar
acterizing 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 appro
priated 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 nei
ther (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 concur
ring 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.
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One cannot know whether a takings claim is invalid with
out knowing what standard it has failed to meet.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 assis
tance 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 reject
ing 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 govern
ing test, but concluding that the claim at issue failed);
Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 390,
——————
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 regula
tion restricting the use of property effects a taking.
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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. Chi
cago, 166 U. S. 226, 241, 255–257 (1897) (holding that the
Due Process Clause of the Fourteenth Amendment prohib
its uncompensated takings, but concluding that the court
below made no errors of law in assessing just compensa
tion). 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
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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 embrac
ing 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 stan
dard under which a party wins or loses.” Post, at 3 (em
phasis 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 exis
tence of the right in question was settled,7 and we faced a
choice between competing standards that had been applied
by the courts.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.
——————
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).
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 estab
lished 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.
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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 tak
ing, while purporting not to determine what is the stan
dard 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 Tak
ings 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 speci
fying 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 deci
sion 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 gov
ernment takings, JUSTICE KENNEDY would have us use
Procedural Due Process to impose judicially crafted sepa
ration-of-powers limitations upon the States: courts can
not be used to perform the governmental function of ex
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propriation. 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 prop
erty right, when this Court has had no trouble deciding
matters of much greater moment, contrary to congres
sional desire or the legislated desires of most of the States,
with no special competence except the authority we pos
sess 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. Un
der his regime, the citizen whose property has been judi
cially 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 ac
countable nor competent to make such a decision, it can
not 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 expropria
tion function to the branch of government whose proce
dures are, by far, the most protective of individual rights.
So perhaps even this first respect in which JUSTICE KEN-
NEDY would have the Due Process Clause do the work of
the Takings Clause pertains to Substantive, rather than
Procedural, Due Process. His other arguments undoubt
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edly 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 propo
sition that the Due Process Clause imposes “limits on
government’s ability to diminish property values by regu
lation,” 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 legisla
tive 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 ‘pro
vides an explicit textual source of constitutional protec
tion’ 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 liber
ties. 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
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effect, than merely applying the Takings Clause to judicial
action. And the third and last problem with using Sub
stantive 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 cer
tain 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 tor
tious 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 state
ment that “owners may reasonably expect or anticipate
courts to make certain changes in property law” with the
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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 be
fore 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 compensa
tion. That remedy is even rare for a legislative or execu
tive 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 uncom
pensated 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 “difficul
ties,” post, at 1, “difficult questions,” post, at 5, and “prac
tical 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 “sweep
ing 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
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that the Florida Supreme Court had effected an uncom
pensated 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 judg
ment 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 al
ways resided, not in the Florida Supreme Court but in the
Florida Legislature—which could either provide compen
sation or acquiesce in the invalidity of the offending fea
tures 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 applica
tions 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 constitu
tional 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 Substan
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tive 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 intrusive
ness 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 Con
stitution 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 Proc
ess as a substitute for more specific constitutional guaran
tees 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
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whether a state-court decision rests upon adequate and
independent state grounds, placing it beyond our jurisdic
tion 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.9
Next, respondents argue that federal courts lack the
knowledge of state law required to decide whether a judi
——————
9 JUSTICE BREYER complains that we do not set forth “procedural limi
tations 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 deter
mining 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.
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cial 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 restric
tions that background principles of the State’s law of
property and nuisance already place upon land owner
ship.” Lucas, 505 U. S., at 1029. A constitutional provi
sion 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 consti
tutional 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
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(1923); District of Columbia Court of Appeals v. Feldman,
460 U. S. 462, 476 (1983). That does not necessarily fol
low. 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 execu
tive 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 execu
tive 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. Wash
ington, 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 confis
catory 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, be
cause 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,
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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 ad
vance 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 pre
liminary 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,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
——————
10 Petitioner meets the two requirements necessary for an association
to assert the Article III standing of its Members. See Food and Com
mercial 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.
Cite as: 560 U. S. ____ (2010) 25
Opinion of the Court
petitioner distinguishes from the mere right of access to
the water).11 Under petitioner’s theory, because no prior
Florida decision had said that the State’s filling of sub
merged 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 Su
preme 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 show
ing 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. Bow
man, 91 So. 2d 795, 799–800 (Fla. 1957) (right to fill con
veyed by State to private party); State ex rel. Buford v.
Tampa, 88 Fla. 196, 210–211, 102 So. 336, 341 (1924)
——————
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 Su
preme Court’s opinion: that the Department has replaced the Members’
littoral property rights with versions that are inferior because statu
tory; 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 depriva
tion 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.
26 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-
IDA DEPT. OF ENVIRONMENTAL PROTECTION
Opinion of the Court
(same). Second, as we described supra, at 3–4, if an avul
sion 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 result
ing 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 Su
preme 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,
Cite as: 560 U. S. ____ (2010) 27
Opinion of the Court
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 consis
tent 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 ex
plained, 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 de
prived of its character (and value) as oceanfront property
by the State’s artificial creation of an avulsion. Perhaps
28 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-
IDA DEPT. OF ENVIRONMENTAL PROTECTION
Opinion of the Court
state-created avulsions ought to be treated differently
from other avulsions insofar as the property right to accre
tion 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 Su
preme Court’s decision eliminated a right of accretion
established under Florida law.
Petitioner also contends that the State took the Mem
bers’ littoral right to have their property continually main
tain 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 Mem
bers have a separate right for the boundary of their prop
erty 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. Peti
tioner’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
Cite as: 560 U. S. ____ (2010) 29
Opinion of the Court
rejecting it.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 Four
teenth Amendments. The judgment of the Florida Su
preme Court is therefore affirmed.
It is so ordered.
JUSTICE STEVENS took no part in the decision of this
case.
——————
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.
Cite as: 560 U. S. ____ (2010) 1
Opinion of KENNEDY, J.
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 own
ership of the land in question, and of the rights of peti
tioner’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 constitu
tional 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 expro
priation is, of course, applicable to the States under the
Due Process Clause of the Fourteenth Amendment. Chi
cago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 239 (1897).
2 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-
IDA DEPT. OF ENVIRONMENTAL PROTECTION
Opinion of KENNEDY, J.
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 com
pensation. 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 discre
tion 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 Black
acre 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 compen
sation. 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
Cite as: 560 U. S. ____ (2010) 3
Opinion of KENNEDY, J.
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 execu
tive 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 Pennsyl
vania Coal Co. v. Mahon, 260 U. S. 393, 413 (1922) (there
must be limits on government’s ability to diminish prop
erty 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 gov
ernment 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
4 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-
IDA DEPT. OF ENVIRONMENTAL PROTECTION
Opinion of KENNEDY, J.
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 estab
lished 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 effec
tiveness of, regulatory actions.” Lingle, supra, at 545.
State courts generally operate under a common-law tradi
tion that allows for incremental modifications to property
law, but “this tradition cannot justify a carte blanch judi
cial 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 expec
tation 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
Cite as: 560 U. S. ____ (2010) 5
Opinion of KENNEDY, J.
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
6 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-
IDA DEPT. OF ENVIRONMENTAL PROTECTION
Opinion of KENNEDY, J.
modification under state common law that does not violate
due process, as owners may reasonably expect or antici
pate 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 tak
ings 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 subse
quently rescind the judicial decision by statute, the State
would still have to pay just compensation for the tempo
rary 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
Cite as: 560 U. S. ____ (2010) 7
Opinion of KENNEDY, J.
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 jurispru
dence has expanded beyond the Framers’ understanding,
as it now applies to certain regulations that are not physi
cal 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 judi
cial 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
8 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-
IDA DEPT. OF ENVIRONMENTAL PROTECTION
Opinion of KENNEDY, J.
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 condem
nation claims where the State says it is not taking prop
erty 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 sepa
rate 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. Mon
santo Co., 467 U. S. 986, 1016 (1984), and the Court sub
sequently held that the Takings Clause requires the avail
ability 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 dam
ages, as the Clause “does not proscribe the taking of prop
erty; it proscribes taking without just compensation.”
Williamson County Regional Planning Comm’n v. Hamil
ton 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
Cite as: 560 U. S. ____ (2010) 9
Opinion of KENNEDY, J.
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 ad
dress 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 William
son 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
10 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-
IDA DEPT. OF ENVIRONMENTAL PROTECTION
Opinion of KENNEDY, J.
press most of their judicial takings claims before state
courts, which are “presumptively competent . . . to adjudi
cate 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 mean
time, it seems appropriate to recognize that the substan
tial 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.
Cite as: 560 U. S. ____ (2010) 1
Opinion of BREYER, J.
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, how
ever, for in those Parts the plurality unnecessarily ad
dresses 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 de
termine whether the decisions unconstitutionally take
“private property” for “public use without just compensa
tion.” 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 ex
ecutive 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 obvi
ously appropriate” to apply this Court’s “ ‘fair and substan
tial basis’ ” test, familiar from our adequate and independ
ent state ground jurisprudence, when evaluating whether
2 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-
IDA DEPT. OF ENVIRONMENTAL PROTECTION
Opinion of BREYER, J.
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 pri
marily 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.
Cite as: 560 U. S. ____ (2010) 3
Opinion of BREYER, J.
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 con
sist of.” Ante, at 12. But, of course, courts frequently find
it possible to resolve cases—even those raising constitu
tional 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 neces
sary 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 longstand
ing 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.”