A plurality of the Supreme Court would hold that courts, like legislatures, can take private property by eliminating established property rights — but no majority has ever agreed, leaving the doctrine in doctrinal suspension.
I. Doctrinal Framing
Takings doctrine has long assumed a legislative or executive actor: the government condemns land through eminent domain, a regulation eliminates economically productive use, or an access regime appropriates the right to exclude. Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 560 U.S. 702 (2010), asked a different question: can a state court's reinterpretation of property rights itself constitute a taking requiring just compensation?
The answer the Court gave was formally narrow — the Florida Supreme Court had not committed a taking on the facts — but the theoretical ground it covered was broad and remains unresolved. For practitioners litigating property rights claims in courts that are actively reshaping state property law doctrine, Stop the Beach represents either an emerging constitutional constraint or a dormant plurality waiting to become law, depending on which justices ultimately supply the deciding votes.
II. The Florida Facts
A. The Avulsion and Accretion Background
Florida coastal property law distinguishes between accretion (gradual, imperceptible addition of sand by natural processes) and avulsion (sudden, perceptible change to shoreline by storm, flood, or human action). The settled rule at common law: land gained by accretion belongs to the upland owner; land gained or lost by avulsion does not change the property line.
Florida's Beach and Shore Preservation Act authorized state-sponsored beach renourishment — depositing fill sand on eroded beaches — in a way that altered this traditional rule. After renourishment, the newly deposited sand and the boundary between private upland property and publicly owned beach would be fixed at the mean high-water line as of the renourishment date. This meant the upland owners would lose two traditional property rights: (1) the right to have their property boundary move as the natural shoreline moved (the accretion right), and (2) the right to have direct contact between their property and the water (the littoral right of access to the water).
B. The Florida Supreme Court Decision
The Florida Supreme Court upheld the Beach and Shore Preservation Act, holding that the landowners' claimed rights — the right to accretion and the right to contact with the water — were not, in fact, established property rights under Florida law. The court's reasoning: avulsion (as beach renourishment constitutes) has always interrupted the accretion rule; the state, in restoring eroded beaches, was acting consistently with the traditional avulsion doctrine; and the landowners had no vested right to continuing contact with the water in the face of avulsion.
III. The Supreme Court Decision — Plurality and Concurrences
A. The Plurality Opinion (Justice Scalia, joined by Roberts, Thomas, Alito)
The plurality would have recognized the judicial takings doctrine as a live constitutional principle. Justice Scalia's reasoning: the Takings Clause protects against government taking of private property; courts are part of the government; there is no logical basis to exempt judicial action that eliminates established property rights from the Clause's reach. If the Florida Supreme Court had "created" new law that eliminated previously established property rights — rather than accurately stated the existing law — that elimination would be a taking.
The plurality's test for a judicial taking: the plaintiff must show that the state court's decision eliminated an established property right that existed under state law before the decision. A court that accurately applies existing law, even if that application is harmful to a particular property owner, does not commit a taking. A court that changes the law in a way that eliminates a pre-existing property right does.
The plurality concluded, however, that the Florida Supreme Court had not committed a taking on these facts because Florida's existing law did, in fact, support the court's interpretation. There was no elimination of an established right — rather, the court accurately described what the rights always were.
B. Justice Kennedy's Concurrence (joined by Sotomayor)
Justice Kennedy, joined by Justice Sotomayor, agreed that the judgment should be affirmed but declined to reach the judicial takings question. In Kennedy's view, the right vehicle for challenging a court decision that eliminates property rights is due process under the Fourteenth Amendment — not the Takings Clause. His reasoning: a court that retroactively eliminates established property rights without fair notice has acted arbitrarily and denied due process; the Takings Clause, by contrast, is designed for deliberate, authorized governmental acquisitions of property.
Kennedy's alternative framing is significant: it means that even without a majority for the Scalia plurality's judicial takings theory, a plaintiff whose established property rights have been judicially eliminated without fair notice may still have a Fourteenth Amendment due process claim.
C. The Practical Consequence: No Majority for Judicial Takings
The 8-0 result (Justice Stevens recused) affirming the Florida Supreme Court is not the consequential part of Stop the Beach. The consequential part is that no majority has ever established the doctrine or rejected it. The plurality's framework exists; it has been cited in lower court opinions and academic commentary; but no decision of the Supreme Court has adopted it as the law.
IV. Mapping the Doctrine for Litigation
A. When Judicial Takings Arguments Are Available
For the judicial takings theory to be viable, counsel must satisfy the plurality's framework:
- There was an established property right under state law before the court decision at issue. This requires identifying the specific property right — access to water, right to accretion, littoral boundary, mineral rights, air rights — and establishing its existence under prior state law through statutes, prior decisions, or settled property doctrine.
- The court's decision eliminated that right — not merely limited it, regulated it, or applied existing doctrine in a way unfavorable to the plaintiff, but genuinely changed the legal status of the right from existing to non-existent.
- The elimination was not required by prior law — it was a departure from settled doctrine rather than an accurate application of it.
B. The Kennedy Due Process Alternative
Even where a court declines to reach the judicial takings question under the Scalia plurality, the Kennedy due process alternative is available where:
- The property right was genuinely established under prior law;
- The court's decision retroactively eliminated it;
- The owner had no reasonable notice that the right could be extinguished in this manner; and
- The retroactive elimination was, in consequence, arbitrary.
Due process challenges to state court property decisions are difficult to win — courts give broad deference to state court interpretations of state law. But the Kennedy framework provides a constitutional hook when state courts engage in doctrinal innovations that destroy property rights without prospective application.
C. State Court Forum Implications
Perhaps the most practical implication of Stop the Beach is the signal it sends to litigants in state court property disputes: when a state court is being asked to change or significantly reinterpret settled property law in a way that would eliminate existing rights, the constitutional dimension should be preserved. A litigant who fails to raise the judicial takings/due process argument in state court may face exhaustion or preservation problems in federal court.
V. Avulsion Doctrine in Florida Post-Stop the Beach
For practitioners in Florida coastal property disputes, Stop the Beach settled several things as a matter of Florida law even if it left the constitutional doctrine unresolved:
- Government-sponsored beach renourishment is treated as avulsion, not accretion.
- After renourishment, upland property boundaries do not continue to move with the restored shoreline.
- Upland owners facing renourishment projects retain their property up to the pre-renourishment mean high-water line, but the state-owned beach seaward of the erosion control line is public property after restoration.
Coastal property buyers and their counsel should review title for proximity to Florida's erosion control line designations. A property with an erosion control line established pursuant to Florida's Beach and Shore Preservation Act has a fixed seaward boundary regardless of subsequent accretion.
VI. Practice Notes
Preservation of judicial takings arguments. Because the doctrine exists only at plurality strength, trial and appellate courts will be reluctant to apply it. Raise and preserve the argument at every level — in state trial court, state appellate court, Florida Supreme Court — so that if the Supreme Court ever adopts the plurality framework, the claim has not been waived. Document precisely the prior state-law authority establishing the property right at issue and the manner in which the court below departed from it.
Parallel federal due process claim. Where a state court has retroactively altered property rights in ways not fairly disclosed by prior law, plead the Kennedy due process theory as an alternative. The standard is demanding, but Stop the Beach plurality and Justice Kennedy agree that some judicial eliminations of property rights are constitutionally cognizable — they disagree only on the doctrinal home.
Distinguishing interpretation from elimination. The most significant weakness of judicial takings claims is that courts will characterize what they have done as "clarifying" rather than "changing" the law. Counsel must marshall affirmative authority — prior statutes, decisions, treatises, deeds referencing specific rights — showing the right's pre-decision existence and contrast it with the post-decision doctrinal landscape.
Compensation exposure for state defendants. If a judicial taking doctrine is ever fully adopted, the compensation obligation would fall on the state whose court eliminated the property right. In Florida, that implicates Florida's inverse condemnation framework and the sovereign immunity structure — issues worth addressing if Stop the Beach jurisprudence develops further.
VII. Open Questions and Where the Law Is Moving
The core unresolved question is whether the judicial takings plurality will ever become a majority. Post-Stop the Beach, the Court's composition has shifted toward a supermajority that has shown sustained interest in property rights protection — Cedar Point, Knick v. Township of Scott, 588 U.S. 180 (2019), and Sheetz v. County of El Dorado, 601 U.S. 267 (2024), all expanded takings protections. A future case presenting clean facts — a state court decision that unambiguously eliminated a well-documented preexisting property right — could supply the vehicle for the plurality to become a majority.
The parallel Kennedy due process theory is less dependent on new Supreme Court votes and more immediately viable. Practitioners whose clients have been harmed by a court decision that retroactively altered established property rights should analyze the Kennedy framework carefully.
VIII. Closing
Stop the Beach Renourishment matters for two reasons. As a matter of Florida coastal property law, it definitively established how the state's beach renourishment program interacts with private upland property rights. As a matter of constitutional doctrine, it established a live — if not yet majority-ratified — theory that courts can take property just as legislatures can, and that the Takings Clause or the Due Process Clause may reach that conduct. The doctrine is not settled, but it is not dormant either.
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Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.