The Journal of The DuPage County Bar Association

Back Issues > Vol. 25 (2012-13)

The Debate Over Judicial Takings Marks the Next Step in Environmental Policy
By Stephanie Mann

When the Supreme Court decided the case of Stop the Beach Renourishment v. Florida Department of Environmental Protection on June 17, 2010, it gave new life to a little known doctrine: judicial takings.1 While the issue of judicial takings has been sporadically addressed throughout the years by the courts, the issue has never been resolved.2 In fact, there is still great debate over whether the doctrine actually even exists, and, if it does, its true definition.3 The ramifications of adopting the doctrine of judicial takings are great, especially in the realm of environmental law. In order to enable the states to take affirmative action without incurring prohibitive costs, to protect their shores as they face increasing erosion and other environmental damage, the Supreme Court should not adopt the judicial takings doctrine.

In reviewing the development of the judicial takings doctrine, it is important to first find a working definition of what constitutes a judicial taking. It is imperative to note that the judicial takings doctrine is a separate doctrine from either legislative or administrative takings found in the Fifth and Fourteenth Amendments.4 Because the issue of judicial takings has never fully been discussed or accepted by the courts, there is no set definition that is recognized by the legal community.5 As a result, there is a wide range of definitions that scholars and courts have adopted when discussing the doctrine of judicial takings. For the purposes of this article, a judicial taking is defined as “whether federal constitutional questions arise when state courts change their definitions of property by determining that ‘property,’ once recognized under state law, no longer exists.”6 Due to the fact that courts have failed to decisively rule on the issue of judicial takings, or even to recognize the validity of this doctrine, it cannot be defined as a constitutional claim, as some scholars have sought, but can only be defined as a potential constitutional claim.7

While the doctrine of judicial takings has been addressed in multiple court cases, the first time that it has been mentioned by name was in Stop the Beach.8  However, it has become generally recognized that the first time the principle of judicial takings was raised was in the 1897 case of Chicago, Burlington & Quincy Railroad Co. v. City of Chicago.9 The Court specified that the state was required under the Constitution to pay just compensation for any private property that the state takes, whether it be the legislative, executive, or judicial branch, for public use.10 In ensuing cases, the Court occasionally touched on the topic of judicial takings, but it was not until 2010 that it truly addressed the issue.

On June 17, 2010, the Court passed down an 8-0 decision in the case of Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection.11 In 2003, the Florida Legislature passed the Beach and Shore Protection Act, which provided for the protection of the coastline by adding seventy-five feet of dry sand to the beaches and tide lines.12 This new beachfront property was owned by the state as their established erosion control line, thereby depriving beachfront property owners of their riparian rights.13 

This act was challenged by a not-for-profit corporation, Stop the Beach Renourishment, Inc., which is comprised of members of beachfront property owners.14 The Florida District Court of Appeals for the First District held that the Act amounted to an unconstitutional taking because it deprived the beachfront owners of their littoral rights.15 It was held that the Act does not provide those beachfront owners with adequate just compensation for depriving them of their property.16 The Florida Supreme Court reversed the lower court’s ruling, and the United States Supreme Court granted certiorari.

Stop the Beach Renourishment, Inc., challenged the Florida Supreme Court’s decision, arguing that the decision itself consists of an unconstitutional taking in violation of the Fifth and Fourteenth Amendments.17 While the Supreme Court unanimously found that the Florida Supreme Court’s decision did not constitute a judicial taking, the Court was deeply divided about whether such a thing as a judicial taking existed at all.18

Because the issue of judicial takings is fairly new and wholly undeveloped, multiple arguments have been used by both the courts as well as legal scholars to validate this doctrine. While each of the arguments has been addressed by individual justices and scholars, none have been readily accepted by the legal community as a whole. Each of the plurality arguments will be discussed in relation to their main arguments.

The first argument in relation to the judicial takings doctrine is federalism. When dealing with the issue of judicial takings, it is naturally grounded primarily in property law, and historically, the issue of property law has been regulated almost exclusively by state law. While mostly guided by state law, it has been acknowledged that federal courts “must have the power to decide what property rights exist under state law[,]”19 as the Takings Clause is found in the United States Constitution and not in any state constitution or statute.  Despite some regulation by the federal courts, precedent suggests that, should the doctrine of judicial takings be adopted, it should be governed by state law. However, the general discussion surrounding the issue of judicial takings has been premised on the notion that governance would be regulated by the Federal Government and the Federal Courts.20 

In the case of Hughes v. Washington, Justice Black, writing for the majority, distinguished property law, which is governed by the States, from riparian land rights.21 Black held that because the waters of the ocean touch both the states as well as the boundaries of international waters, it should therefore be governed by federal law.22 The rationale that Black used to support this position is that this relationship of the ocean “is too close to the vital interest of the Nation in its own boundaries to allow it to be governed by any law but the ‘supreme Law of the Land.’”23 The opinion in Hughes stated that those rights guaranteed by a federal grant must therefore be governed by federal law as opposed to state law. While this case never recognized the doctrine of judicial takings, it seems to suggest that, should it be adopted, it must be governed by federal law as opposed to state law which governs the overwhelming majority of property law.

The question of federalism in relation to the judicial takings doctrine was further complicated in the Stop the Beach concurring opinion penned by Justice Breyer and joined by Justice Ginsburg.24 While ultimately writing that the doctrine of judicial takings does not need to be addressed to decide the case, Breyer does address the arguments made by the majority.25 He quoted the plurality, which reached the decision “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.”26

Breyer criticized the Court for the potential flood of federal takings claims that could come before federal courts without first considering those legal principles which could prevent the courts from ruling on such matters. Property law questions are a matter of state law in which federal courts are not equipped to adjudicate.  Breyer argues that, because of the expected complexity of these cases and because they are based solely on state law, federal judges do not possess the requisite knowledge and experience to adequately decide these matters.27 However, should federal judges be allowed to deliver judgment on such complex cases, they would play a significant role in altering property law, which is a matter of state interest and therefore governed by the individual states.28

As the judicial takings doctrine begins to be more thoroughly addressed by the courts and legal scholars, one of the many arguments that are being raised is the question of federalism and the discrepancy between the historical notion that property law should be firmly grounded in state law because federal courts lack the requisite knowledge of state law, and the notion that federal courts have always played an important role in the development of property law precedent.29 If the doctrine of judicial takings were to be adopted, the eventual effect of that decision would be to essentially federalize state law as it pertains to property rights.30

The second, and primary, argument in relation to this doctrine is the separation of powers. When dealing with the judicial takings doctrine, perhaps the most debated issue is the separation of powers. The Takings Clause can be found in the Fifth Amendment of the United States Constitution, which states that “nor shall private property be taken for public use, without just compensation.” While it never specifies which branch of the government is bound by this provision, traditionally, it has only been applied against the legislative and executive branches through the practice of eminent domain.31 However, originalist justices, such as Justice Scalia, look to the exact text of the Amendment and find that the wording of the amendment is solely concerned with the governmental act as opposed to the governmental actor.32 It is this underlying inquiry that has fueled great debate by the courts and legal scholars alike.

In the inaugural case that sparked debate over the judicial takings doctrine, Chicago, Burlington & Quincy Railroad Co. v. Chicago, the Court seemed to adopt the view that the Framers intended the Takings Clause to be applied to the judicial branch, in addition to the legislative and executive branches.33 Emphasizing that the right to property is one of the most important rights that a citizen can possess, the Court stated that “in a free government, almost all other rights would become worthless if the government possessed an uncontrollable power over the private fortune [personal property] of every citizen.”34 In the eyes of the majority, the notion of due process is completely undermined if private property owners are not justly compensated for the government taking their property for the purpose of public use.35 While not specifically addressing the doctrine of judicial takings, the Court stated that any decision from a state court, even if it was based on an act of legislature, would be unconstitutional if the owner of the private property was not justly rewarded.36

The issue of separation of powers in relation to the Due Process Clause has become most prominent under the modern court due to the influence of Justices Scalia and Thomas. Writing for the plurality opinion in Stop the Beach Renourishment, Justice Scalia emphasized his belief that the Takings Clause applies equally to the judicial branch as it does the legislative branch.37 Scalia highlighted the fact that neither the actual text of the Constitution, nor the original intent of the Framers, discriminates against the judicial branch.38 Scalia wrote that the Constitution’s failure to distinguish between the branches suggests that a taking through the judiciary is feasible, and that the Court’s analysis of that taking would have to be the same as the analysis that it would perform on a legislative taking.39 While never specifying the doctrine of judicial takings by name, this analysis seems to support that the plurality is willing to adopt the doctrine of judicial takings.

However, despite this earlier statement that any judicial decision that deprives a private property owner of his property must insure that the property owner receives just compensation, based on a separation of powers analysis, Scalia later belittles the entire doctrine of judicial takings.40 He states that he must “grapple with the artificial question of what would constitute a judicial taking if there was such a thing as a judicial taking.”41 Scalia then goes further and describes the doctrine of judicial taking as being equivalent to the time-honored question: “how much wood would a woodchuck chuck if a woodchuck could chuck wood.”42 While seeming to accept the basic tenets of the judicial takings doctrine, the plurality is fervently opposed to adopting it by name.

Justice Kennedy, in his concurrence, analyzed this separation of powers argument through a public policy perspective.43 He observed that the right to confiscate private property for public use is a vast governmental power, and one that provides broad power.44 In the eyes of Justice Kennedy, as well as many scholars, the fundamental differences between the three branches of government—with the legislative and executive branches held publicly accountable through the election process, and the authority of the judicial branch to review the actions of the other branches—ensure that due process is present.45 However, under the doctrine of judicial takings, the Due Process Clause would be violated, as any attempt by the judiciary to regulate or amend property rights prevents adequate review. “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.”46 Based on this analysis, Kennedy finds that the doctrine of judicial takings would completely undermine the separation of powers and the fundamental function of our system of government.47

It is only recently that the Supreme Court has begun to take an active role in environmental policy. The Court has come to recognize that there are a number of issues that have already caused significant harm to the environment, including rising sea levels and the erosion of the coasts.48 In fact, the Court went so far as to recognize that while coastal erosion was already an issue of pressing concern, the situation will only worsen over the next century.49 

By failing to adopt the judicial takings doctrine, the Court has furthered its willingness to play a role in environmental policy. Despite the fact that this doctrine has only been sporadically and vaguely addressed by the Court for a period of over one hundred years, and was not officially referred to by name by the courts until 2010 in Stop the Beach Renourishment, it has the potential to play a great role in the realm of environmental policy. Yet the case of Stop the Beach Renourishment seems to have lent credibility to the notion proposed by some legal scholars that the judicial takings doctrine can play a significant role in the ability of state and local governments’ ability to take actions in order to sustain coastal waters.50

At first blush, the link between the fight for environmental policy and the judicial takings doctrine might seem tenuous at best, but the similarities between the two can be found under the surface. This link between the two became especially clear when the Supreme Court granted certiorari to Stop the Beach Renourishment. It is because this specific case involved the issue of coastal erosion that the potential impact of the judicial takings doctrine on the environment became readily apparent.

Coastal land has long been an area in which businesses and individuals have sought to purchase property and erect beautiful commercial and residential buildings.51 It is estimated that about “…40 % of the world’s populations live along coasts or within 100 kilometers (62 miles) of a coast.”52  The presence of man along the coasts, coupled with such environmental issues as increased emissions of pollutants, greenhouse gases, and climate change, means that coastal land is facing the serious threat of erosion as the sea level continues to rise and pollutants remain present in the ocean.53 The Supreme Court itself has recognized that “the harms associated with climate change are serious and well recognized. Indeed, the NRC Report itself . . . identifies a number of environmental changes that have already inflicted significant harms, including . . .  the accelerated rate of rise of sea levels during the 20th Century relative to the past few thousand years.”54 In order to combat the harmful effects of coastal erosion, all levels of government need to take affirmative action to protect and preserve our shores.

In an effort to protect, preserve, and restore the already damaged coasts of the United States, it is crucial that the three levels of government have the ability to take immediate and affirmative measures.55 In order to take these preventive measures, states must have the ability to create such structures as groins, seawalls, drainage systems, and the continued importing of sand; the state must have the unobstructed ability to act as soon as it becomes necessary.56 While all of these measures are only temporary remedies which have been created in order to stall the danger that this nation faces under coastal erosion, it gives scientists and geologists additional time to discover more permanent solutions.57 Without such measures, the Federal Emergency Management Agency predicts that “about 25% of homes and structures within 150 meters (500 feet) of the U.S. coastline will be damaged or fall into the sea as a result of beach erosion between 2000 and 2060.”58 Coastal erosion is a serious issue that must be addressed by the courts.

Should the judicial takings doctrine be adopted by the courts, it would seriously impede the ability of the local, state, and federal governments to take the actions necessary to prevent such environmental problems such as coastal erosion.59  If the Supreme Court had held in favor of the private property owners in Stop the Beach Renourishment, the State of Florida would lose its access to the shores of Walton County and its subsequent ability to preserve and restore those same beaches.60 The responsibility to maintain the beaches would then fall on the private owners, in which the lack of financial resources and willingness to act could prevent any such affirmative measures from taking place. A lack of initiative could lead to a further diminution in the property value of coastal property.61  Therefore, if the judicial takings doctrine were to be adopted, it would deprive all levels of government of the ability to enact and take effective steps in preserving this nation’s coasts and the environment in general.62

There are many questions that remain unanswered regarding the judicial takings doctrine. One of the most important of these unresolved issues is the development of a widely-accepted definition of the doctrine. A universal definition will help to provide clarity to the legal community as the issue of judicial takings resurfaces in the aftermath of Stop the Beach Renourishment.  The full impact of recognizing the judicial takings doctrine remains unclear, due to the fact that there is an insufficient amount of debate by legal scholars and the courts. However, the ability of the doctrine to negatively impact environmental policy is apparent. With the decisions in Stop the Beach Renourishment, the Supreme Court has provided state and local governments with greater power to regulate environmental concerns. Additionally, by failing to adopt the judicial takings doctrine, the Court has further enabled state governments to take immediate and affirmative action to preserve this nation’s coastal lands. However, perhaps the most important thing that this case has done is to simply recognize that coastal erosion is a serious and immediate danger that needs to be addressed in order to preserve our shores and the nation as a whole.  

1 See, Stop the Beach Renourishment v. Fla. Dep’t of Envt’l Prot., 130 S. Ct. 2592 (2010).

2 See, e.g., Stop the Beach Renourishment, 130 S. Ct. 2592.

3 Id.

4 Barton H. Thompson, Jr., Note, Judicial Takings, 76 Va. L. Rev. 1449, 1450 (1990). The most readily recognized takings claims are those in which the courts are regulating the actions of both the legislative and executive branches in order to determine if either branch has impermissibly deprived an individual of their property rights without just compensation. Id. This differs from the judicial takings doctrine in that the Supreme Court is attempting to determine whether a judicial decision that negatively affects property rights qualifies as a judicial taking. Id.

5 See, e.g., J. Nicholas Bunch, Note, Takings, Judicial Takings, and Patent Law, 83 Tex. L. Rev. 1747 (2005); Roderick E. Walston, The Constitution and Property: Due Process, Regulatory Takings, and Judicial Takings, 2001 Utah L. Rev. 379 (2001); W. David Sarratt, Note, Judicial Takings and the Course Pursued, 90 Va. L. Rev. 1487 (2004).

6 Walston, supra note 5, at 424.

7 See id.

8 See Chicago, Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226 (1897); Muhlker v. N.Y. & Harlem R.R. Co., 197 U.S. 544 (1905); Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673 (1930); Hughes v. Washington, 389 U.S. 290 (1967).

9 See Chicago, Burlington & Quincy R.R., 166 U.S. 226.

10 See id.

11 See Stop the Beach Renourishment., 130 S. Ct. 2592.

12 Id. at 2594.

13 Id. The Supreme Court has adopted a definition of “riparian” rights for this case, “whereby ‘riparian’ means abutting a river or stream and ‘littoral’ means abutting an ocean, sea, or lake.” Stop the Beach Renourishment, 130 S. Ct. at 2598. 

14 Id. at 2600.

15 Id. Littoral owners have certain “special rights” with regard to riparian rights. “These include the right to 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.” Stop the Beach Renourishment, 130 S. Ct. at 2598. 

16 Id. at 2613.  

17 Id.

18 Alexis Sly, The Debate on Judicial Takings: I Scream, You Scream, We all Scream for Property Rights, 33 No.7 ZPLR 1, 7 (2010).

19 Stop the Beach Renourishment, 130 S. Ct. at n. 9.

20 See Hughes, 389 U.S. 290.

21 Id. at 293.

22 Id.

23 Id.

24 See Stop the Beach Renourishment, 130 S. Ct. at 2618-19.

25 Id. at 2618.

26 Id. at 2618 (citing Stop the Beach, 130 S. Ct. at 2609-10).

27 Id.

28 Id.

29 See Stop the Beach Renourishment, 130 S. Ct. 2592; see Hughes, 389 U.S. at 290.

30 Bunch, supra note 5, at 1771-72.

31 See Stop the Beach Renourishment, 130 S. Ct. at 2601.

32 Id.

33 See Chicago, Burlington & Quincy R.R., 166 U.S. at 226.

34 Id. at 236.

35 See id. at 236-41.

36 Chicago, Burlington & Quincy R.R.., 166 U.S. at 241.

37 Id.

38 130 S.Ct., at 2602.

39 Id.

40 See, Stop the Beach Renourishment, 130 S. Ct. at 2603.

41 Id.

42 Id.

43 Id. at 1613.

44 Id.

45 See, Stop the Beach Renourishment, 130 S. Ct. at 2613.

46 Id.

47 Id.

48 Massachusetts; Climate Change Science. All environmental impacts are “the global retreat of mountain glaciers, reduction in snow-cover extent, and the earlier spring melting of ice on rivers and lakes.”

49 Id. at 523.

50 See Supreme Court Rejects Beachfront Property Owners’ “Takings” Claim, Warming Law (June 17, 2010, 5:40 PM),

51 See David K. Bederman, The Curious Resurrection of Custom: Beach Access and Judicial Takings, 96 Colum. L. Rev. 1375, 1376 (1996).

52 G. Tyler Miller, Jr. Living in the Environment: Principles, Connections, and Solutions 155 (Brooks/Cole, 13th ed. 2004).

53 Id. at 155 and 450. Over the last one hundred years, the world has experienced an increased sea level rise of four to eight inches. Id. at 450. It is widely believed that this increase in sea level can cause dramatic shifts in the world’s ecosystem. Some of the projected damages are: 1) could cause the eastern shoreline of the United States to retreat about .8 mile inland, 2) flood low-lying plains, 3) contaminate freshwater subsidiaries, and 4) possibly submerge some islands in the Pacific Ocean. Id. at 461. While some scientists doubt the catastrophic nature of a rising sea level, they do not dispute that a rising sea level will have a significant impact on the actions of those nations whose borders are surrounded by the ocean. Id. In fact, those same skeptical scientists suggest that in order to prevent such devastation, countries will have to take affirmative action such as the building of dikes and levees. Id.  

54 Christopher R. Reeves, Esq. Climate Change Litigation: When and Where Will the Next Storm Hit, The Georgia Environmental Deskbook (May 2008), (citing Massachusetts, 549, U.S. 297). See also National Research Council: Climate Change Science: An Analysis of Some Key Questions (2001).

55 See generally Miller, supra note 52, at 461.

56 Id. at 648. A groin is a structure that starts on the beach and extends into the ocean. These structures help to trap the sand that is caught in the current.  A seawall can be used as a temporary structure in order to protect property behind the seawall. A drainage system takes the water that soaks into the sand on the coast, collects it through a series of drainage pipes, and expels this water away from the coast. 

57 Miller, supra note 52, at 647.

58 Id.

59 See Supreme Court Rejects Beachfront Property Owners’ “Takings” Claim, Warming Law (June 17, 2010, 5:40 PM),

60 Id.

61 See id.

62 Supreme Court Rejects Beachfront Property Owners’ “Takings” Claim, supra note 183, at 2.

Stephanie Mann received her Bachelor of Arts in Politics from Earlham College in Richmond, Indiana in 2009. She is currently receiving her juris doctor degree from Northern Illinois University College of Law and expects to graduate in 2012. Stephanie is currently clerking for the 17th Judicial Circuit and at the Cosentino Law Firm, LLC, in DeKalb.

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