No.

08-1151
================================================================

In The
Supreme Court of the United States
---------------------------------♦---------------------------------

STOP THE BEACH RENOURISHMENT, INC.,

Petitioner,
v.

FLORIDA DEPARTMENT OF ENVIRONMENTAL

PROTECTION, THE BOARD OF TRUSTEES OF THE
INTERNAL IMPROVEMENT TRUST FUND,
WALTON COUNTY, and CITY OF DESTIN,
Respondents.

---------------------------------♦---------------------------------

On Writ Of Certiorari To The

Florida Supreme Court

---------------------------------♦---------------------------------

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE IN SUPPORT OF PETITIONER
AND BRIEF AMICUS CURIAE OF OWNERS’ COUNSEL
OF AMERICA IN SUPPORT OF PETITIONER

---------------------------------♦---------------------------------

ROBERT H. THOMAS
Counsel of Record
MARK M. MURAKAMI
TRED R. EYERLY
DAMON KEY LEONG
KUPCHAK HASTERT
1003 Bishop Street, 16th Floor
Honolulu, Hawaii 96813
(808) 531-8031
www.hawaiilawyer.com
Counsel for Amicus Curiae
================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
 1

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE IN SUPPORT OF PETITIONER
Pursuant to this Court’s Rule 37, Owners’
Counsel of America requests leave of the Court to file
this brief amicus curiae in support of Petitioner.
Amicus requests leave to file this brief outside
the time established in Rule 37.3(a) because
undersigned counsel of record who was principally
responsible for producing this brief experienced both
the death of an immediate family member and
concurrently contracted a severe case of adult chicken
pox which resulted in hospitalization. Counsel of
record for both Petitioner and Respondents were
notified of the above circumstances and informed
amicus they have no objection to the filing of this
brief.
September 2009.
ROBERT H. THOMAS
Counsel of Record
MARK M. MURAKAMI
TRED R. EYERLY
DAMON KEY LEONG
KUPCHAK HASTERT
1003 Bishop Street, 16th Floor
Honolulu, Hawaii 96813
(808) 531-8031
www.hawaiilawyer.com
Counsel for Amicus Curiae
 i

QUESTIONS PRESENTED

The Florida Supreme Court invoked “nonexistent

rules of state substantive law” to reverse 100 years of
uniform holdings that littoral rights are constitu-
tionally protected. In doing so, did the Florida Court’s
decision cause a “judicial taking” proscribed by the
Fifth and Fourteenth Amendments to the United
States Constitution?
Is the Florida Supreme Court’s approval of a
legislative scheme that eliminates constitutional lit-
toral rights and replaces them with statutory rights
a violation of the due process clauses of the Fifth
and Fourteenth Amendments to the United States
Constitution?
Is the Florida Supreme Court’s approval of a
legislative scheme that allows an executive agency to
unilaterally modify a private landowner’s property
boundary without a judicial hearing or the payment
of just compensation a violation of the due process
clauses of the Fifth and Fourteenth Amendments to
the United States Constitution?
 ii

TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .................................. i
TABLE OF AUTHORITIES ................................... iii
INTEREST OF AMICUS CURIAE ........................ 1
SUMMARY OF ARGUMENT ................................ 1
ARGUMENT ........................................................... 3
I. PROPERTY EMBODIES A CORE NOR-
MATIVE COMPONENT WHICH MAY
NOT BE ALTERED BY STATE COURTS
WITHOUT COMPENSATION .................... 3
II. REMEDIES FOR A JUDICIAL TAKING ... 11
III. JUDICIAL TAKINGS .................................. 15
A. Summarily Discarding Long-Established
Common Law Rules............................... 15
B. Eliminating The Right To Exclude By
Custom ................................................... 24
C. Expanding The Scope Of The Public
Trust ....................................................... 26
CONCLUSION ....................................................... 28
 iii

TABLE OF AUTHORITIES
Page
CASES
Air Pollution Variance Bd. of Colorado v. W.
Alfalfa Corp., 416 U.S. 861 (1974).......................... 11
Ariyoshi v. Robinson, 477 U.S. 902 (1986).................20
Babbitt v. Youpee, 519 U.S. 234 (1997) ............ 9, 12, 13
Borough of Neptune City v. Borough of Avon-
by-the-Sea, 294 A.2d 47 (N.J. 1972)........................27
Brinkerhoff-Faris Trust & Savings Co. v. Hill,
281 U.S. 673 (1930) .................................................14
Broad River Power Co. v. South Carolina, 281
U.S. 537 (1930) ..........................................................8
Brown v. Legal Foundation of Washington, 538
U.S. 216 (2003) ..........................................................6
Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.
Comm’n of New York, 447 U.S. 557 (1980) ............. 11
Center for Biological Diversity, Inc. v. FPL
Group, Inc., 83 Cal. Rptr. 3d 588 (Cal. Ct.
App. 2008) ...............................................................26
Chicago, Burlington & Quincy R.R. Co. v. City
of Chicago, 166 U.S. 226 (1897) ................................5
County of Hawaii v. Sotomura, 517 P.2d 57 (Haw.
1973), cert. denied, 419 U.S. 872 (1974) .............21, 22
Damon v. Hawaii, 194 U.S. 154 (1904)........................3
Dolan v. City of Tigard, 512 U.S. 374 (1994) ......... 11, 13
Eastern Enterprises v. Apfel, 524 U.S. 498
(1998) ................................................................. 11, 12
 iv

TABLE OF AUTHORITIES – Continued

Page
Euclid v. Ambler Realty Co., 272 U.S. 365
(1926) .........................................................................6
Ex parte Virginia, 100 U.S. 339 (1880)........................5
Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280 (2005) .................................................15
Hodel v. Irving, 481 U.S. 704 (1987) ........................8, 9
Hughes v. Washington, 389 U.S. 290 (1967) ..........8, 10
Ingraham v. Wright, 430 U.S. 651 (1977) ....................9
In re Ashford, 440 P.2d 76 (Haw. 1968) ...............23, 24
Kaiser Aetna v. United States, 444 U.S. 164
(1979) ..................................................... 3, 6, 8, 10, 13
Lucas v. South Carolina Coastal Council, 505
U.S. 1003 (1992) .............................................. passim
Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978) ........ 11
Matthews v. Bay Head Imp. Ass’n, 471 A.2d 355
(N.J.), cert. denied, 469 U.S. 821 (1984) .................27
McBryde Sugar Co. v. Robinson, 504 P.2d 1330
(Haw. 1973)............................................ 16, 17, 18, 19
McBryde Sugar Co. v. Robinson, 517 P.2d 26
(Haw. 1973) (per curiam) ..................................17, 18
Missouri ex rel. Missouri Ins. Co. v. Gehner,
281 U.S. 313 (1930) .................................................14
Muhlker v. New York & Harlem Railroad Co.,
197 U.S. 544 (1905) ...................................................8
 v

TABLE OF AUTHORITIES – Continued

Page
National Audubon Soc. v. Superior Court, 658
P.2d 709 (Cal.), cert. denied, 464 U.S. 977
(1983) .......................................................................27
New York v. Burger, 482 U.S. 691 (1987) ................... 11
Nollan v. California Coastal Comm’n, 483 U.S.
825 (1987) ............................................................4, 13
Palazzolo v. Rhode Island, 533 U.S. 606 (2001) ..........8
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393
(1922) .................................................................12, 13
Phillips v. Washington Legal Foundation, 524
U.S. 156 (1998) ..........................................................8
Public Access Shoreline Hawaii v. County of
Hawaii Planning Comm’n, 903 P.2d 1246
(Haw. 1995), cert. denied, 517 U.S. 1163
(1996) .................................................................25, 26
PruneYard Shopping Center v. Robins, 447 U.S.
74 (1980) .......................................................... passim
Robins v. Pruneyard Shopping Center, 592 P.2d
341 (Cal. 1979) ........................................................14
Robinson v. Ariyoshi, 441 F. Supp. 559 (D.
Haw. 1977) ...............................................................18
Robinson v. Ariyoshi, 676 F. Supp. 1002
(D. Haw. 1987) .........................................................20
Robinson v. Ariyoshi, 753 F.2d 1468 (9th Cir.
1985) ...................................................... 15, 16, 19, 20
Robinson v. Ariyoshi, 796 F.2d 339 (9th Cir.
1986) ........................................................................20
 vi

TABLE OF AUTHORITIES – Continued

Page
Robinson v. Ariyoshi, 887 F.2d 215 (9th Cir.
1990) ........................................................................21
Ruckelshaus v. Monsanto Co., 467 U.S. 986
(1984) .........................................................................3
Saunders v. Shaw, 244 U.S. 317 (1917) .....................14
Sotomura v. County of Hawaii, 460 F. Supp.
473 (D. Haw. 1978) ............................................22, 23
State ex rel. Thornton v. Hay, 462 P.2d 671 (Or.
1969) ..................................................................24, 25
State of Hawaii v. Zimring, 566 P.2d 725 (Haw.
1977) ........................................................................28
Stevens v. City of Cannon Beach, 854 P.2d 449
(Or. 1993), cert. denied, 510 U.S. 1207 (1994) ....24, 26
United States v. Causby, 328 U.S. 256 (1946) .............6
Webb’s Fabulous Pharmacies v. Beckwith, 449
U.S. 155 (1980) ............................................ 3, 7, 8, 12
Williamson County Regional Planning Comm’n
v. Hamilton Bank of Johnson City, 473 U.S.
172 (1985) .................................................... 15, 20, 21
Young v. American Mini Theatres, Inc., 427
U.S. 50 (1976) ............................................................6

CONSTITUTIONAL PROVISIONS
U.S. CONST. ART. IV .......................................................4
U.S. CONST. AMEND. V ......................................... passim
U.S. CONST. AMEND. XIV ..................................... passim
 vii

TABLE OF AUTHORITIES – Continued

Page
MISCELLANEOUS
John D. Echeverria & Sharon Dennis, The
Takings Issue and the Due Process Clause: A
Way Out of a Doctrinal Confusion, 17 VT. L.
REV. 695 (1993)..........................................................2
James L. Huffman, Background Principles and
the Rule of Law: Fifteen Years After Lucas, 35
ECOLOGY L.Q. 1 (2008) ..........................................2, 7
Joseph L. Sax, The Public Trust Doctrine in
Natural Resource Law: Effective Judicial
Intervention, 68 MICH. L. REV. 471 (1970)..............26
 1

INTEREST OF AMICUS CURIAE

The Owners’ Counsel of America (OCA) is a non-
profit organization, organized under IRC § 501(c)(6)
and sustained solely by its members.1 OCA is a
voluntary network of the most experienced eminent
domain and property rights attorneys from across the
country who seek to advance, preserve and defend the
rights of private property owners, large and small,
locally and nationally. Since its founding in 2000,
OCA has sought to use its members’ combined
knowledge and experience as a resource in the
defense of private property ownership, and to make
that opportunity available and effective to property
owners nationwide. OCA member attorneys have
been and are involved in landmark property rights
cases in nearly every jurisdiction nationwide.
---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT
This case concerns whether the “background
principles” exception to per se takings in Lucas v.
South Carolina Coastal Council, 505 U.S. 1003 (1992),
permits state courts to construe local property law in
a manner that threatens to virtually swallow up all

1
All counsel of record consented to the filing of this brief,
and received notice of the intention to file this brief at least ten
days before it was due. This brief was not authored in any part
by counsel for either party, and no person or entity other than
amicus and counsel made a monetary contribution toward the
preparation or submission of this brief.
 2

regulatory takings.2 Indeed, state courts have been

actively encouraged to leverage their power to define
background principles to avoid takings. See Huffman,
Background Principles, 35 ECOLOGY L.Q. at 1
(“Fifteen years later, some who saw only dark clouds
on the regulatory horizon as a consequence of Lucas
now see a rainbow with a pot of gold at its end.”);
John D. Echeverria & Sharon Dennis, The Takings
Issue and the Due Process Clause: A Way Out of a
Doctrinal Confusion, 17 VT. L. REV. 695, 705 (1993)
(nuisance law may consume the per se takings rule).
This brief addresses three issues. First, the
notion of “property” embodies core components
transcending a state court’s power to redefine. The
rule of accretion, which insures that littoral parcels
remain so, is one of those fundamental components.
Second, the remedy for a judicial taking is
invalidation of the state court judgment. Third, this
brief summarizes several of the more notable
instances where state courts have openly and
notoriously rewritten established rules of property.
This was accomplished under the guise of “correcting”

2
Professor James L. Huffman has suggested “background
principles” includes public trust, natural use, navigational
servitude, customary rights (including native gathering rights),
various doctrines of water rights law, wildlife trust, Indian
treaty rights, preexisting state and federal statutes and
constitutions, destruction by necessity, criminal forfeitures, and
revocable grants to public resources. James L. Huffman,
Background Principles and the Rule of Law: Fifteen Years After
Lucas, 35 ECOLOGY L.Q. 1, 9 (2008).
 3

errors in long-standing common law doctrines, reinter-

preting terms to alter their commonly understood
meanings, or “discovering” that private property is
(and has been all along) subject to a public trust.
---------------------------------♦---------------------------------

ARGUMENT
I. PROPERTY EMBODIES A CORE NORMA-
TIVE COMPONENT WHICH MAY NOT BE
ALTERED BY STATE COURTS WITHOUT
COMPENSATION
While the Fifth and Fourteenth Amendments
expressly protect property, the contours of what con-
stitutes property is left mostly to definition by state
legislatures and courts. See, e.g., Damon v. Hawaii,
194 U.S. 154, 157 (1904); Kaiser Aetna v. United
States, 444 U.S. 164, 179 (1979); Webb’s Fabulous
Pharmacies v. Beckwith, 449 U.S. 155, 161 (1980);
Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001
(1984); Lucas v. South Carolina Coastal Council, 505
U.S. 1003, 1030 (1992). A state’s authority is not
exclusive, however, and it is well-accepted that the
Takings and Due Process Clauses constrain a state’s
legislative and executive powers and prohibit those
branches from rewriting the accepted rules of
property and declaring that what has always been
private is now public. See, e.g., Webb’s Fabulous
Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164
(1980) (the state may not, “by ipse dixit . . . transform
private property into public property without
compensation”); Lucas, 505 U.S. at 1014 (“the
 4

government’s power to redefine the range of interests

included in the ownership of property was necessarily
constrained by constitutional limits”); Nollan v.
California Coastal Comm’n, 483 U.S. 825 (1987)
(agency improperly required landowner to dedicate
public easement as a condition of development
approvals). Were the actions of the Florida Supreme
Court in this case attributable instead to the Florida
Legislature or the executive branch, there is little
doubt that a taking would be found.3
The authority of state courts is similarly con-
strained, as state courts are bound to honor federal
constitutional limitations. U.S. CONST. ART. IV (“This
Constitution, and the Laws of the United States . . .
shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby . . . ”).
The Fourteenth Amendment’s Due Process clause

3
For a recent example of a state using its legislative power
to attempt to ipse dixit rewrite established common law rules of
accretion, see Hawaii’s Act 73. In Act 73, the state legislature
sought to overthrow the ancient reciprocal system of littoral
accretion and erosion, instead decreeing that the state acquires
private lands lost to erosion, but also owns accreted lands.
Under the Act, no one but the state is able to register or quiet
title to accreted land unless a littoral owner overcomes a
virtually insurmountable standard of proof. When challenged, a
Hawaii trial court invalidated Act 73 as a taking. See Order
Granting Plaintiffs’ Amended Motion for Partial Summary
Judgment filed February 13, 2006 (May 3, 2006), Maunalua
Bay Beach Ohana 28 v. State of Hawaii, Civ. No. 05-1-0904-05
(Sep. 1, 2006) (available at http://www.inversecondemnation.com/
accretion_order_mpsj.pdf). The state has appealed the judgment
to the Hawaii Intermediate Court of Appeals.
 5

incorporates the guarantees of the Fifth Amendment

against the states, not merely state legislatures and
state executive branches. U.S. CONST. AMEND. XIV
(“nor shall any State deprive any person of life,
liberty, or property, without due process of law”). In
Chicago, Burlington & Quincy R.R. Co. v. City of
Chicago, 166 U.S. 226 (1897), the case incorporating
the Takings Clause against the states, this Court
held:
But it must be observed that the prohibitions
of the amendment refer to all the instru-
mentalities of the State, to its legislative,
executive and judicial authorities, and,
therefore, whoever by virtue of public
position under a state government deprives
another of any right protected by that
amendment against deprivation by the State,
“violates the constitutional inhibition; and as
he acts in the name and for the State, and is
clothed with the State’s power, his act is that
of the State.” This must be so, or, as we have
often said, the constitutional prohibition has
no meaning, and “the State has clothed one
of its agents with power to annul or evade
it.”
Id. at 234-35 (quoting Ex parte Virginia, 100 U.S.
339, 346-47 (1880)). In PruneYard Shopping Center v.
Robins, 447 U.S. 74 (1980), the Court recognized that
state courts have wide latitude to define property, but
that ability is subject to constitutional limitations:
 6

It is, of course, well established that a State,

in the exercise of its police power, may adopt
reasonable restrictions on private property
so long as the restrictions do not amount to a
taking without just compensation or con-
travene any other federal constitutional
provision.
Id. at 81 (citing Euclid v. Ambler Realty Co., 272 U.S.
365 (1926); Young v. American Mini Theatres, Inc.,
427 U.S. 50 (1976)).
The case at bar presents the Court the oppor-
tunity to provide definitive guidance that “property”
is not a completely malleable term, but rather em-
bodies a core set of normative principles immunized
by the Fifth and Fourteenth Amendments from state
court redefinition without compensation, especially
where, as here, the result of state action is a per se
taking of property.4
If it were to be accepted that the . . . holding
in Lucas can fairly be understood to embrace

4
Florida’s deprivation of Petitioner’s members’ rights to
have their parcels maintain contact with the ocean is a per se
taking of property because the Florida Supreme Court’s new
rule did not simply destroy the right, it transferred it to the
public. See Brown v. Legal Foundation of Washington, 538 U.S.
216 (2003) (state’s reassignment of interest is a per se taking);
Kaiser Aetna v. United States, 444 U.S. 164 (1979) (government’s
invitation for the public to enter private marina was a per se
physical taking); United States v. Causby, 328 U.S. 256 (1946)
(government had not merely destroyed easement, but was using
it for its own purposes).
 7

the notion that the common law is almost

infinitely malleable at the discretion of any
court or legislature, then the ambitions of
those who would read the takings clause out
of the constitution are finally and fully
realized. But the common law cannot be so
pliable at the hands of adjudicators and
lawmakers or it no longer serves its core
purpose: the rule of law. To be sure, legis-
lators have power to alter or repeal the
common law through legislation, but they do
not, consistent with the rule of law, have
power to declare the common law something
it is not.
Huffman, Background Principles, 35 ECOLOGY L.Q. at
12.
This Court has addressed the issue before,
although never directly. See, e.g., PruneYard
Shopping Center v. Robins, 447 U.S. 74, 93 (1980)
(Marshall, J., concurring) (“I do not understand the
Court to suggest that rights of property are to be
defined solely by state law, or that there is no federal
constitutional barrier to the abrogation of common
law rights by Congress or a state government. The
constitutional terms ‘life, liberty, and property’ do not
derive their meaning solely from the provisions of
positive law. They have a normative dimension as
well, establishing a sphere of private autonomy which
government is bound to respect.”); Webb’s Fabulous
Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164
(1980) (the state may not, “by ipse dixit . . . transform
private property into public property without
 8

compensation”); Hughes v. Washington, 389 U.S. 290,

296-97 (1967) (Stewart, J., concurring) (government
cannot wipe out property rights simply by legislating
the property out of existence); Broad River Power Co.
v. South Carolina, 281 U.S. 537, 540-41 (1930) (“[I]t
is the province of this Court to inquire whether the
decision of the state court rests upon a fair or
substantial basis. If unsubstantial, constitutional
obligations may not be thus evaded.”); Muhlker v.
New York & Harlem Railroad Co., 197 U.S. 544, 570
(1905) (state judicial power does not extend to take
away rights acquired by contract). See also Palazzolo
v. Rhode Island, 533 U.S. 606, 627 (2001)
(government cannot wipe out property rights by
prospective legislation).
Common law rules of accretion and erosion – in
Florida and elsewhere – are exactly the type of long-
standing understandings which the Takings and Due
Process Clauses were designed to protect from
transfer to the public by a state court or legislature.
See, e.g., Kaiser Aetna, 444 U.S. at 179-80 (“we hold
that the ‘right to exclude,’ so universally held to be a
fundamental element of the property right, falls
within this category of interests that the Government
cannot take without compensation”) (footnote
omitted); Webb’s Fabulous Pharmacies, Inc. v. Beckwith,
449 U.S. 155 (1980) (interest on interpleaded funds);
Phillips v. Washington Legal Foundation, 524 U.S.
156, 172 (1998) (interest on lawyer’s trust accounts is
“private property”); Hodel v. Irving, 481 U.S. 704, 716
 9

(1987) (passing property by inheritance a funda-

mental attribute of property); Babbitt v. Youpee, 519
U.S. 234, 239 (1997) (the statute in Hodel was struck
down because “[s]uch a complete abrogation of the
rights of descent and devise could not be upheld.”). In
PruneYard, Justice Thurgood Marshall concurred in
the Court’s holding that no judicial taking had
occurred, but acknowledged:
Quite serious constitutional questions might
be raised if a legislature attempted to abolish
certain categories of common-law rights
in some general way. Indeed, our cases
demonstrate that there are limits on
governmental authority to abolish “core”
common-law rights, including rights against
trespass, at least without a compelling
showing of necessity or a provision for a
reasonable alternative remedy.
PruneYard, 447 U.S. at 93-94 (Marshall, J., con-
curring). Justice Marshall noted that in Ingraham v.
Wright, 430 U.S. 651 (1977), the Court determined
the Due Process Clause prohibits abolishment of
“those privileges long recognized at common law as
essential to the orderly pursuit of happiness by free
men.” Id. at 672-73, quoted in PruneYard, 447 U.S. at
94 n.3 (Marshall, J., concurring).
The nearly universal rules of accretion and
erosion have for centuries insured that riparian and
littoral properties remain so, even when the water’s
edge shifts naturally over time. In the decision under
review, however, the Florida Supreme Court radically
 10

altered that ancient balance. To avoid ruling that a

Florida statute abrogated rights which had been an
established part of Florida law for more than a
century, the court decreed those rights never really
existed at all. With the stroke of a pen, the court
eliminated the dominant feature of littoral and ripar-
ian property – continuous contact with the water,
wherever the water naturally flows.5 The ability to
maintain a littoral parcel’s physical contact with the
ocean is not simply a unilateral expectation or a
product of positive law, but an expectation “that has
the law behind it.” Kaiser Aetna, 444 U.S. at 178.
Thus, it is property expressly protected by the Fifth
and Fourteenth Amendments from arbitrary or
capricious state action which includes a state court
summarily altering established common law rules on
which property owners have relied for over a century.
The Fifth and Fourteenth Amendments do not
dictate what state law is, see Lucas, 505 U.S. at 1035
(Kennedy, J., concurring) (“The Takings Clause does
not require a static body of state property law.”), but
they do constrain all state action. If state courts
are not limited from transferring established and
universal common law property rights to the public

5
“Accreted” lands or “accretion” refers to land “gradually
deposited by the ocean on adjoining upland property.” Hughes v.
Washington, 389 U.S. 290, 291 (1967). The accretion doctrine
insures that riparian and littoral property owners maintain
their parcel’s access to water, which is often the most valuable
feature of their property. Id. at 293.
 11

under the guise of rediscovering the “true” law, then

property will be “relegated to the status of a poor
relation” to other rights protected by the Bill of
Rights.6

II. REMEDIES FOR A JUDICIAL TAKING

The Takings Clause is self-executing and not
merely a waiver of sovereign immunity. Nor is it a
license for any branch of state government to run
roughshod over established property rights provided
the state is subject to an after-the-fact inverse
condemnation lawsuit. The Takings Clause is a posi-
tive command as well as remedial: a state may not
take private property without first condemning it and
paying just compensation, and if a state has not
provided compensation, its action may be invalidated
or enjoined. In Eastern Enterprises v. Apfel, 524 U.S.
498 (1998), a plurality of this Court rejected the
argument that a post-deprivation compensation
remedy was the only available claim to a property

6
As this Court recognized in Dolan v. City of Tigard, 512
U.S. 374 (1994), “We see no reasons why the Takings Clause of
the Fifth Amendment, as much a part of the Bill of Rights as the
First Amendment or Fourth Amendment, should be relegated to
the status of a poor relation in these comparable circumstances.”
Id. at 392 (citing Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978);
Air Pollution Variance Bd. of Colorado v. W. Alfalfa Corp., 416
U.S. 861 (1974); New York v. Burger, 482 U.S. 691 (1987); Cent.
Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York,
447 U.S. 557 (1980)).
 12

owner who asserted that a statutory scheme violated

the Takings Clause:
Based on the nature of the taking alleged in
this case, we conclude that the declaratory
judgment and injunction sought by petitioner
constitute an appropriate remedy under the
circumstances, and that it is within the
district courts’ power to award such equi-
table relief.
Id. at 522. See also Webb’s Fabulous Pharmacies, Inc.
v. Beckwith, 449 U.S. 155, 164 (1980) (the Takings
Clause “stands as a shield against the arbitrary use
of governmental power”); Babbitt v. Youpee, 519 U.S.
234 (1997) (affirming district court’s invalidation of
statute for violation of the Takings Clause because
statute “made no provision for the payment of
compensation”).
Consequently, the only constitutional way for
Florida to acquire Petitioner’s members’ property
interests is to condemn and pay for them, which the
state admittedly has not done. While increasing
public ownership of beaches may be a public good, “[a]
strong public desire to improve the public condition is
not enough to warrant achieving the desire by a
shorter cut than the constitutional way of paying for
the change.” Pennsylvania Coal Co. v. Mahon, 260
U.S. 393, 416 (1922). In that case, the seminal
takings decision, this Court held there was a
constitutional violation despite the fact the property
owners whose interests were impaired by the statute
could have sued for inverse condemnation. The Court
 13

did not order the government to pay for the private

property interests taken. Rather, the Court concluded
“the act cannot be sustained as an exercise of the
police power” and invalidated it. Id. at 414. See also
Kaiser Aetna v. United States, 444 U.S. 164, 180
(1979) (“Thus, if the Government wishes to make
what was formerly Kuapa Pond into a public aquatic
park after petitioners have proceeded as far as they
have here, it may not, without invoking its eminent
domain power and paying just compensation, require
them to allow free access to the dredged pond[.]”);
Babbitt v. Youpee, 519 U.S. 234, 239 (1997) (affirming
district court’s invalidation of statute for violation of
the Takings Clause because statute “made no
provision for the payment of compensation”); Nollan
v. California Coastal Comm’n, 483 U.S. 825 (1987)
(court invalidated government action for violating the
Takings Clause); Dolan v. City of Tigard, 512 U.S. 374
(1994) (invalidation for violation of Takings Clause).
Similarly, the Florida Supreme Court’s action in the
case at bar cannot be sustained as a valid exercise of
the state’s judicial power.
The procedural posture of PruneYard Shopping
Center v. Robins, 447 U.S. 74 (1980) provides one
example of how this remedy for a judicial taking
could be implemented. In that case, the California
Supreme Court interpreted the free speech provision
in the California Constitution to provide greater
rights than under the First Amendment, and
reinterpreted California law to allow “speech and
petitioning, reasonably exercised, in shopping centers
 14

even when the centers are privately owned.” Robins v.

Pruneyard Shopping Center, 592 P.2d 341, 347 (Cal.
1979). The California Supreme Court expressly
overruled its decision in an earlier case which held
to the contrary. PruneYard, 447 U.S. at 78. The
shopping center owner appealed to this Court,
asserting the California Supreme Court’s decision
was a taking of the right to exclude others – “which is
a fundamental component of their federally protected
property rights” – by “judicial reconstruction of
[California’s] laws of private property.” Id. at 79.
The Court concluded that no taking occurred
because the shopping center “failed to demonstrate
that the ‘right to exclude others’ is so essential to the
use or economic value of their property that the state-
authorized limitation of it amounted to a ‘taking.’ ”
PruneYard, 447 U.S. at 84. The property owner
“explicitly presented their federal constitutional right
to prohibit public expression on their property[.]” Id.
at 85 n.9. The Court further noted “this Court has
held federal claims to have been adequately pre-
sented even though not raised in lower state courts
when the highest state court renders an unexpected
interpretation of state law or reverses its prior
interpretation.” Id. (citing Brinkerhoff-Faris Trust &
Savings Co. v. Hill, 281 U.S. 673, 677-78 (1930);
Missouri ex rel. Missouri Ins. Co. v. Gehner, 281 U.S.
313, 320 (1930); Saunders v. Shaw, 244 U.S. 317, 320
(1917)). Had the Court found the shopping center’s
right to exclude was essential to its use of its
property, the judgment of the California Supreme
 15

Court would have been vacated, and the case

remanded, the relief Petitioner seeks here.7

III. JUDICIAL TAKINGS

Perhaps more so than state legislatures, state
courts may be susceptible to reordering established
property norms via abrogation of common law rules,
“discovery” of background principles or custom never
before enunciated, or expansion of the public trust
doctrine from use of tidelands and navigable waters
to encompass all natural resources that should be – in
a court’s judgment – in public ownership. This section
details several of the more storied instances where
state courts have accomplished precisely that.

A. Summarily Discarding Long-Established

Common Law Rules
Robinson v. Ariyoshi, the case in which the Ninth
Circuit invalidated a Hawaii Supreme Court decision
7
This procedure would not be subject to ripeness issues
under Williamson County Regional Planning Comm’n v.
Hamilton Bank of Johnson City, 473 U.S. 172 (1985), and would
not require federal district courts to exercise appellate juris-
diction over state supreme courts. See Exxon Mobil Corp. v.
Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005) (“The
Rooker-Feldman doctrine, we hold today, is confined to cases of
the kind from which the doctrine acquired its name: cases
brought by state-court losers complaining of injuries caused by
state-court judgments rendered before the district court pro-
ceedings commenced and inviting district court review and
rejection of those judgments.”).
 16

on judicial takings grounds, started out in 1959 in a

Kauai county trial court as a dispute among several
sugar plantations over which of them possessed the
rights to surplus water in a Kauai stream, among
other things. 753 F.2d 1468 (9th Cir. 1985). The
parties based their claims on long-standing water law
and prescriptive rights precedent of the Kingdom,
Territory, and State of Hawaii. Nine years later, the
trial court issued a 65-page decision based on that
precedent, and declared who was entitled to what. At
that stage, the case was just another in a long line of
water disputes between private parties. The losing
parties appealed to the Hawaii Supreme Court,
where no party – including the State – argued the
controlling water law was anything but as estab-
lished by long-standing Hawaii precedent.
The Hawaii Supreme Court, however, “sua sponte
overruled all territorial cases to the contrary and
adopted the English common law doctrine of riparian
rights.” Robinson, 753 F.2d at 1470 (citing McBryde
Sugar Co. v. Robinson, 504 P.2d 1330 (Haw. 1973)).
The court “also held sua sponte that there was no
such legal category as ‘normal daily surplus water’
and declared that the state, as sovereign, owned and
had the exclusive right to control the flow,” and “that
because the flow of the Hanapepe [stream] was the
sovereign property of the State of Hawaii, McBryde’s
claim of a prescriptive right to divert water could not
be sustained against the state.” Robinson, 753 F.2d at
1470.
 17

In other words, in a dispute between “A” and “B”

over which of them possessed water rights, the
Hawaii Supreme Court simply declared “neither of
you do, the State owns it all.”
The private parties who thought they had owned
something for over a hundred years were under-
standably upset that property they believed they
possessed had morphed into public property simply
by the stroke of three Justices’ pens, and, to add
insult to injury, without even the chance to brief the
court before it announced the new rule. But after a
rehearing on a narrow issue of state law, during
which the court rebuffed an attempt by the private
parties to raise federal constitutional issues, the court
reaffirmed the McBryde ruling, with two Justices
dissenting. See McBryde Sugar Co. v. Robinson, 517
P.2d 26 (Haw. 1973) (per curiam) (McBryde II).
Justice Bernard Levinson switched his vote from
the first opinion, concluding that it was a “radical
departure” from established law, and was a taking:
Although I voted with the majority of this
court in McBryde Sugar Co. v. Robinson, 54
Haw. 174, 504 P.2d 1330 (1973) [hereinafter
referred to as McBryde I], I am constrained
to recant that position in view of my current
understanding of the problems of this case.
In light of the arguments adduced on
rehearing, historical evidence discovered
upon further research subsequent to the
court’s previous decision in this case, and a
reappraisal of the reasoning supporting that
 18

decision, it is my opinion that the court

committed error in holding that all surplus
water belongs to the State and that private
water rights, however acquired, may not be
transferred to nonappurtenant land. Because
of the importance of this case to the
development of the law on the subject of
Hawaii’s water resources, I have undertaken
to present a detailed analysis explaining why
McBryde I is not in keeping with long estab-
lished and unique principles of Hawaiian
water law. Precisely because McBryde I is
such a radical departure from these
principles as they have been heretofore
understood, moreover, I have concluded that
McBryde I effectuates an unconstitutional
taking of the appellant’s and cross-
appellants’ property without just compensa-
tion and should be reversed on this ground
as well.
McBryde II, 517 P.2d at 27 (Levinson, J., dissenting).
This Court declined to review the Hawaii Supreme
Court.
But that was not the last word. The sugar
companies sued state officials in federal district court
under 42 U.S.C. § 1983. The district judge held that
the Hawaii Supreme Court’s McBryde decision took
property without just compensation, and enjoined the
state from enforcing the decision. See Robinson v.
Ariyoshi, 441 F. Supp. 559 (D. Haw. 1977). On appeal,
the Ninth Circuit noted the tortured procedural path
the case next took, including a detour back to the
Hawaii Supreme Court on certified questions when
 19

the Ninth Circuit asked that court whether it really

meant what it said in McBryde:
The leisurely pace of this litigation has
produced three oral arguments in this court,
two of which were followed by referral of
certified questions to the Supreme Court of
Hawaii. See Robinson v. Ariyoshi, 65 Hawaii
641, 658 P.2d 287 (1982) (Robinson II).
Following the publication of the state court’s
answers to the certified questions, the
parties briefed the remaining issues that had
been narrowed by the earlier proceedings
and reargued the case. A number of complex
questions remain, but to expedite the matter
we will discuss only those essential to a
resolution of the main question: Can the
state, by a judicial decision which creates a
major change in property law, divest prop-
erty interests?
Robinson, 753 F.2d at 1471. After addressing
jurisdictional issues, res judicata, and the Rooker-
Feldman doctrine, the Ninth Circuit addressed the
merits:
The state conceded at oral argument that the
Fourteenth Amendment would require it to
pay just compensation if it attempted to take
vested property rights. The substantive
question, therefore, is whether the state can
declare, by court decision, that the water
rights in this case have not vested. The short
answer is no.
 20

Robinson, 753 F.2d at 1473. The court determined the

water rights claimed by the private parties were
vested rights, and that neither the state legislature
nor the state supreme court can alter those rights
without condemnation and payment of just compen-
sation.
By the time Robinson again reached this Court,
Williamson County Regional Planning Comm’n v.
Hamilton Bank of Johnson City, 473 U.S. 172 (1985)
had been decided. Certain regulatory takings cases
brought in district courts were not ripe without initial
resort to state court processes, and this Court
summarily vacated the Ninth Circuit’s Robinson
decision, ordering it to reconsider it in light of
Williamson County’s new ripeness rules. See Ariyoshi
v. Robinson, 477 U.S. 902 (1986). The Ninth Circuit
consequently vacated its earlier order (Robinson v.
Ariyoshi, 796 F.2d 339 (9th Cir. 1986)) and remanded
the case back to the district court, which found the
case ripe under Williamson County. See Robinson v.
Ariyoshi, 676 F. Supp. 1002, 1020-21 (D. Haw. 1987).
Eventually, the Ninth Circuit vacated the district
court’s decision and remanded the case with
instructions to dismiss because the thirty-one year
old case was not ripe under Williamson County be-
cause the state had not yet implemented the Hawaii
 21

Supreme Court’s decision. Robinson v. Ariyoshi, 887

F.2d 215 (9th Cir. 1990).8
In County of Hawaii v. Sotomura, 517 P.2d 57
(Haw. 1973), cert. denied, 419 U.S. 872 (1974), in the
course of a condemnation action the Hawaii Supreme
Court sua sponte redefined the seaward boundary of
a Torrens-titled9 littoral parcel from the high water
mark to the “upper reaches of the wash of the waves,”
holding the county owed no compensation for the land
seaward of the new boundary line because it was
owned by the state.10 One Justice dissented, noting:
I will not indulge in an extensive
dissertation against the holding, for to do so
will be but an exercise in futility. I merely
point out that, in my opinion, the holding is
plain judicial law-making. That is apparent
from the quoted statement in the opinion
that the holding is being made “as a matter

8
Robinson also illustrates how a state court, keenly aware
of the finality requirement in Williamson County, can tailor a
decision and manipulate the ripeness rules to avoid federal court
review simply by declaring that the new rule of law is not “final”
and is an interlocutory ruling subject to change. State courts,
like state and municipal agencies, are presumed not to employ
“stupid staffs.” See, e.g., Lucas, 505 U.S. at 1025-6 n.12.
9
In a Torrens system the state guarantees title, including a
parcel’s boundaries.
10
The trial court awarded nominal compensation of one
dollar to the property owner for the condemnation of this
property, but the Hawaii Supreme Court declared that was error
and took the dollar away because the land was not private
property under the newly-announced rule.
 22

of law,” and from the following reason given

therefor: “Public policy, as expressed by this
court, favors extending to public use and
ownership as much as possible of Hawaii’s
shoreline as is reasonably possible.”
Sotomura, 517 P.2d at 189 (Marumoto, J., dissenting)
(emphasis original).
The property owners brought suit in federal
district court for due process violations. The court
determined “[j]udicial transfers of title to private
lands to the State which do not permit the owner an
opportunity to be heard or to present evidence is not
constitutionally valid. Whenever a party is to be
deprived of property, he is entitled to a meaningful
hearing before the fact.” Sotomura v. County of
Hawaii, 460 F. Supp. 473, 478 (D. Haw. 1978). The
district court concluded:
This Court fails to find any legal, historical,
factual or other precedent or basis for the
conclusions of the Hawaii Supreme Court
that, following erosion, the monument by
which the seaward boundary of seashore
land in Hawaii is to be fixed is the upper
reaches of the wash of the waves. To the
contrary, the evidence introduced in this case
firmly establishes that the common law,
followed by both legal precedent and
historical practice, fixes the high water mark
and seaward boundaries with reference to
the tides, as opposed to the run or reach of
waves on the shore. For example, on the
Island of Hawaii, the seaweed line was used
 23

to indicate the level of the high tides and

high water mark. The decision in Sotomura
was contrary to established practice, history
and precedent and, apparently, was intended
to implement the court’s conclusion that
public policy favors extension of public use
and ownership of the shoreline. A desire to
promote public policy, however, does not
constitute justification for a state taking
private property without compensation.
Id. at 480-81. The state’s appeal to the Ninth Circuit
was dismissed as untimely.
Earlier, in In re Ashford, 440 P.2d 76 (Haw.
1968), the Hawaii Supreme Court rejected over 100
years of its own precedent holding the boundary
between public and private property on Hawaii’s
beaches was the mean high water line. The Ashford
court disregarded these established precedents and
changed the legal boundary of littoral parcels from
the mean high water line to the “upper reaches of the
waves,” effectively confiscating for the public 20 to 30
lateral feet of what had until then always been
private property. Ashford, 440 P.2d at 77. The court
reached this result by reinterpreting the term ma ke
kai (“along the sea” in Hawaiian) in the parcel’s royal
patent, concluding the earlier cases all misunderstood
the true meaning of the phrase. The court concluded
the King who executed the royal patent must have
been ignorant of the survey data and therefore could
not have intended to grant the land below the upper
reaches of the waves. To reinterpret ma ke kai, the
 24

court turned to oral testimony and reputation evi-

dence regarding “customary” usage of the shoreline.
Id. One Justice dissented, noting the majority relied
on “spurious historical assumptions,” and concluded
there was nothing in ancient tradition, custom,
practice, or usage which dictated the use of the upper
reaches of the waves instead of the mean high water
mark as established by the earlier cases. Ashford, 440
P.2d at 93 (Marumoto, J., dissenting).

B. Eliminating The Right To Exclude By

Custom
Applying “custom,” in State ex rel. Thornton v.
Hay, 462 P.2d 671 (Or. 1969), the Oregon Supreme
Court held that littoral property owners had no rights
to the dry sand area of beaches because:
[F]rom the time of the earliest settlement to
the present day, the general public has
assumed that the dry-sand area was a part
of the public beach, and the public has used
the dry-sand area for picnics, gathering
wood, building warming fires, and generally
as a headquarters from which to supervise
children or to range out over the foreshore as
the tides advance and recede.
Id. at 673. After this Court’s decision in Lucas v.
South Carolina Coastal Council, 505 U.S. 1003 (1992)
which held that background principles did not include
law “newly legislated or decreed,” the Oregon
Supreme Court considered whether application of the
Thornton rule was a taking. In Stevens v. City of
 25

Cannon Beach, 854 P.2d 449 (Or. 1993), cert. denied,

510 U.S. 1207 (1994), the court held Thornton was
not newly legislated or decreed and was not a sudden
change in Oregon’s property law. Thornton, the court
held, “did not create a new rule of law,” but “merely
enunciated one of Oregon’s ‘background principles of
. . . the law of property.’ ” Id. at 456 (quoting Lucas,
505 U.S. at 1029).
Similarly, in Public Access Shoreline Hawaii v.
County of Hawaii Planning Comm’n, 903 P.2d 1246
(Haw. 1995), cert. denied, 517 U.S. 1163 (1996), the
Hawaii Supreme Court redefined the nature of fee
simple absolute ownership, and abandoned the
“Western concept of exclusivity” to impose a blanket
easement retroactively over all Hawaii property. The
case arose as a dispute over the standing of native
Hawaiians to intervene in an agency hearing re-
garding a coastal permit sought by a property owner.
Id. at 1250. The agency denied standing, concluding
the native Hawaiians did not have interests different
from the general public. The Hawaii Supreme Court
determined native Hawaiians did possess unique
rights, because custom dictated that Hawaii property
owners never possessed the right to fully exclude
native Hawaiians who wished to exercise “customary
and traditional practices” on private property. Id. at
1268. The court found its decision did not work a
judicial taking or a regulatory taking because the
custom was a “background principle” of Hawaii
property law, despite the fact it eliminated the right
to exclude:
 26

Our examination of the relevant legal

developments in Hawaiian history leads us
to the conclusion that the western concept of
exclusivity is not universally applicable in
Hawaii. In other words, the issuance of a
Hawaiian land patent confirmed a limited
property interest as compared with typical
land patents governed by western concepts of
property.
Id. at 1268 (citing Stevens, 854 P.2d at 456 (“[w]hen
plaintiffs took title to their land, they were on
[constructive] notice that exclusive use . . . was not
part of the ‘bundle of rights’ that they acquired”).

C. Expanding The Scope Of The Public

Trust
The public trust doctrine, which was traditionally
applied only to tidelands and navigable waters, has
been judicially extended to other natural resources
deemed worthy by courts of public ownership. See,
e.g., Center for Biological Diversity, Inc. v. FPL Group,
Inc., 83 Cal. Rptr. 3d 588, 595-96 (Cal. Ct. App. 2008)
(public trust doctrine covers wildlife and is not
limited to navigable waters and tidelands); Joseph L.
Sax, The Public Trust Doctrine in Natural Resource
Law: Effective Judicial Intervention, 68 MICH. L. REV.
471, 467 (1970) (“certain interests are so particularly
the gifts of nature’s bounty that they ought to be
reserved for the whole of the populace.”).
Without constitutional limitations on state
courts’ abilities to enlarge the scope of the public
 27

trust, the doctrine could effectively swallow up the

concept of private property. For example, in Matthews
v. Bay Head Imp. Ass’n, 471 A.2d 355 (N.J.), cert.
denied, 469 U.S. 821 (1984), the New Jersey Supreme
Court held the privately owned dry sand beach area
of littoral property was subject to the public trust.
The court expanded the geographic scope of the trust
from tidelands and navigable waters to the dry beach
because the public needed access in order to exercise
its public trust rights in tidelands:
Exercise of the public’s right to swim and
bathe below the mean high water mark may
depend upon a right to pass across the
upland beach. Without some means of access
the public right to use the foreshore would be
meaningless. To say that the public trust
doctrine entitles the public to swim in the
ocean and to use the foreshore in connection
therewith without assuring the public of a
feasible access route would seriously impinge
on, if not effectively eliminate, the rights of
the public trust doctrine.
Id. at 364. The court held the public trust doctrine
should “be molded and extended to meet changing
conditions and needs of the public it was created to
benefit.” Id. at 365 (quoting Borough of Neptune City
v. Borough of Avon-by-the-Sea, 294 A.2d 47, 55 (N.J.
1972)). See also National Audubon Soc. v. Superior
Court, 658 P.2d 709 (Cal.), cert. denied, 464 U.S. 977
(1983) (property owners who purchase property
subject to public trust do not state takings claims).
 28

Similarly relying on the public trust doctrine, the

Hawaii Supreme Court in State of Hawaii v. Zimring,
566 P.2d 725 (Haw. 1977), ignored its prior precedent
regarding construction of shoreline property descrip-
tions, and held the public owns land created by
volcanic action. In 1955, the active volcano on the
island of Hawaii created 7.9 acres of new land when
lava flowed into the ocean. Id. at 727. The state
assessed the littoral landowner property taxes on the
new land, but thirteen years later sought to quiet
title in itself, asserting public ownership of the new
fast land. Id. at 738. The littoral owner’s boundary
description extended ownership to the “high water
mark.” The Hawaii Supreme Court, however,
disregarded the accepted meaning of this term,
holding instead the description was merely a “natural
monument” and not an “azimuth and distances”
description. Id. at 745 (Vitousek, J., dissenting).
Consequently, the court vested title to the new land
in the state because to adhere to the deed’s language
would, in the court’s view, result in an inequitable
“windfall” that should not “enrich” of any one
landowner, but rather should inure to the collective
public. Id. at 734-35.
---------------------------------♦---------------------------------

CONCLUSION
As the decisions detailed above demonstrate, the
judicial branch of state government is just as capable
of taking property without just compensation and due
process as are the legislative and executive branches.
 29

The judgment of the Florida Supreme Court should

be vacated, and the case remanded.
September 2009.
Respectfully submitted,
ROBERT H. THOMAS
Counsel of Record
MARK M. MURAKAMI
TRED R. EYERLY
DAMON KEY LEONG
KUPCHAK HASTERT
1003 Bishop Street, 16th Floor
Honolulu, Hawaii 96813
(808) 531-8031
www.hawaiilawyer.com
Counsel for Amicus Curiae