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No taking?

Back in 2003, Florida officials decided to pump new sand onto 6.9 miles of beach near the city of Destin and in Walton County, in the Florida panhandle.

Officials explained the beach had been severely eroded by a string of hurricanes and tropical storms.

But not all landowners agreed to the “beach renourishment” plan. So Florida officials invoked the state’s Beach and Shore Preservation Act, which allows the state, under certain circumstances, to re-draw the boundary between submerged public lands and private waterfront property.

Once the new line is established, all new dry sand pumped onto the beach on the seaward side comprises new state-owned land under Florida law. In the process, beach-front property owners lose their right to claim any new land beyond the old high-tide mark. They go, in effect, from owning private beachfront property to owning less valuable “beach view” property, separated from the water by a new public beach.

Some landowners sued. The case made it to the U.S. Supreme Court, which last week ruled 8-0 — Justice John Paul Stevens recused himself because he owns beachfront real estate in Florida — that the property owners were not owed compensation under the Fifth Amendment because the diminution of property values did not rise to the level of a “taking,” since Florida law does not recognize ocean frontage, per se, as a “property right.”

“The takings clause [of the Fifth Amendment] only protects property rights as they are established under state law, not as they might have been established or ought to have been established,” wrote Justice Antonin Scalia, his face presumably puckered up like a prune, for the court.

So the property owners are out of luck — at least until such time as the hurricanes repeat their work.

On the bright side, though, the court split 4-4 on the separate issue of whether a judicial decision can amount to a taking that would trigger compensation.

“If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the state had physically appropriated it or destroyed its value by regulation,” Justice Antonin Scalia wrote on behalf of himself and Chief Justice John Roberts, Justice Clarence Thomas and Justice Samuel Alito.

Since Fordham Law School dean William Treanor reports Justice Stevens has “the narrowest view of the Takings Clause” on the court, his recusal probably avoided a stronger finding that judicial edicts can never be considered compensatable “takings.”

Which would have been far worse.

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