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This Article May Not Be Reproduced, Distributed, Or Copied Without the Permission of Nova Law Review File: Document1 Created on: 12/16/2011 1:13:00 PM Last Printed: 12/16/2011 2:20:00 PM STOP THE BEACH RENOURISHMENT: A CASE OF MACGUFFINS AND LEGAL FICTIONS SIDNEY F. ANSBACHER∗ I. INTRODUCTION ................................................................................... 588 II. DEVELOPMENT OF PRIVATE REAL PROPERTY RIGHTS ...................... 590 A. William the Conqueror Through the Magna Carta .................. 590 B. Lord Coke and His Impact on Our Colonial System ................. 597 C. Development of Property Rights and Vesting Law in American Jurisprudence, with an Emphasis on the Contracts Clause ....................................................................................... 598 D. The Rise and Fall of Substantive Due Process in Federal Courts ........................................................................................ 603 E. Takings Law .............................................................................. 608 III. VESTED RIGHTS .................................................................................. 609 A. Background of Vested Rights .................................................... 609 B. Summation of Vested Rights ...................................................... 609 IV. DEVELOPMENT OF WATER RIGHTS IN ANTIQUITY ............................ 610 V. SPANISH WATER LAW ........................................................................ 615 VI. ENGLISH RIPARIAN LAW .................................................................... 617 VII. AMERICAN LAW OF NAVIGABILITY FOR TITLE PURPOSES ................ 626 VIII. NAVIGABILITY FOR REGULATORY PURPOSES .................................... 647 IX. SOVEREIGN LANDS BOUNDARIES ...................................................... 654 A. Tidal Boundaries ....................................................................... 654 B. Non-Tidal Water Boundaries .................................................... 658 X. RIPARIAN AND LITTORAL RIGHTS ...................................................... 660 XI. OWNERSHIP OF LANDS INFLUENCED BY ACCRETION, AVULSION, RELICTION, AND EROSION .................................................................. 662 XII. FLORIDA ............................................................................................. 673 A. Colonial Background ................................................................ 674 B. Statehood ................................................................................... 684 1. Sovereign Lands, Navigability, and the Public Trust ...... 684 2. Background to STBR ........................................................ 692 a. The Beach and Shore Preservation Act .................. 692 ∗ Sidney F. Ansbacher is a senior shareholder in the Jacksonville, Florida office of GrayRobinson, who practiced initially for the Florida Department of Natural Resources, Divi- sion of State Lands. He was a co-counsel for amicus curiae Coalition for Property Rights before the Supreme Court of the United States in Stop the Beach Renourishment v. Florida Department of Environmental Protection. qÜáë=~êíáÅäÉ=ã~ó=åçí=ÄÉ=êÉéêçÇìÅÉÇI=ÇáëíêáÄìíÉÇI=çê=ÅçéáÉÇ=ïáíÜçìí=íÜÉ=éÉêãáëëáçå=çÑ=kçî~=i~ï=oÉîáÉï File: Document1 Created on: 12/16/2011 1:13:00 PM Last Printed: 12/16/2011 2:20:00 PM 588 NOVA LAW REVIEW [Vol. 35 3. The Administrative and Legal Background to STBR ....... 693 4. STBR’s Filing ................................................................... 697 a. On Judicial Takings ................................................ 697 5. The Oral Argument .......................................................... 701 6. The STBR Decision .......................................................... 701 a. Florida Law ............................................................ 701 b. Judicial Takings ...................................................... 703 7. STBR’s Results ................................................................. 706 a. Title Coverage......................................................... 706 C. Constitutional Issue ................................................................... 709 XIII. CONCLUSION ...................................................................................... 710 I. INTRODUCTION This article attempts to place the Supreme Court of the United States’ decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection (STBR),1 in context of Florida property law. The decision juxtaposed Florida’s riparian and littoral rights law against the state’s beach renourishment program, all in an attempt to determine whether the judicial branch can be liable for compensable takings of property rights. While the Supreme Court held that no judicial taking occurred, it perfuncto- rily considered the underlying issues. What were the rights of Gulffront property owners on renourished beaches funded by state and local govern- ment? The fundamental issues concerned a simple truth: “Water not only fructifies the soil, but it also delimits the boundaries of land grants.”2 Fur- ther, few battles over property boundaries are as heated, or yet as transitory, as those on the seashore. The STBR court split into three blocs regarding the judicial takings is- sue. All eight of the justices—Justice Stevens, who owns an oceanfront con- dominium in Florida, recused himself—held no judicial taking occurred in the case at bar. The court split as follows: Justice Scalia wrote for Chief Justice Roberts, Justices Thomas, Alito, and himself in a plurality, opining that judicial taking is a viable doctrine. They opined that a court effects a taking if it “declares that what was once an established right of private prop- erty no longer exists.”3 Justice Kennedy wrote for Justice Sotomayor and himself in stating that the substantive due process doctrine sufficed to ad- 1. 130 S. Ct. 2592 (2010). 2. Hans W. Baade, Roman Law in the Water, Mineral and Public Land Law of the Southwestern United States, 40 AM. J. COMP. L. 865, 867 (1992). 3. Stop the Beach Renourishment, Inc., 130 S. Ct. at 2602 (plurality opinion). qÜáë=~êíáÅäÉ=ã~ó=åçí=ÄÉ=êÉéêçÇìÅÉÇI=ÇáëíêáÄìíÉÇI=çê=ÅçéáÉÇ=ïáíÜçìí=íÜÉ=éÉêãáëëáçå=çÑ=kçî~=i~ï=oÉîáÉï File: Document1 Created on: 12/16/2011 1:13:00 PM Last Printed: 12/16/2011 2:20:00 PM 2011] STOP THE BEACH RENOURISHMENT 589 dress the matter.4 Justice Breyer wrote for Justice Ginsburg and himself to say that the whole proceeding was unnecessary.5 Needless to say, much jousting occurred. In particular, Justice Scalia attacked Justice Kennedy’s reliance on the substantive due process doctrine. He emphasized “that the ‘liberties pro- tected by Substantive Due Process do not include economic liberties.”6 Jus- tice Scalia accused Justice Kennedy of “Lochner-izing,” alleging that Justice Kennedy applied the due process clause in an unseemingly activist manner.7 Commentators assume Justice Scalia thought he had a fifth vote in Justice Kennedy for holding that a judicial takings doctrine exists.8 Hence, the an- tipathy.9 The Court gave short shrift to the underlying issue. We do not. I write elsewhere about the STBR decision’s impact on landowners’ rights to ex- clude and on public rights of access on Florida’s beaches.10 This article fo- cuses on the myriad changes over two millennia in the law of waterfront ownership in questioning the STBR Court’s determination that there is any settled law in Florida regarding who owns what on the waterfront, let alone the purportedly settled law upon which that court relied. The most recent and most settled appeared to support the property owner. This requires an exegesis of how waterfront ownership law developed. We turn, first, to the development of common law real property rights. From the Norman Conquest forward, we see a broadening of private property rights, followed by increasing regulation. Next, the article addresses public rights in and under navigable waters, before turning to riparian and littoral 4. Id. at 2615–16 (Kennedy, J., concurring). 5. See id. at 2619 (Breyer, J., concurring). 6. Id. at 2606 (plurality opinion). 7. Lochner v. New York, 198 U.S. 45 (1905). Gary K. Oldehoff, Florida’s Beach Res- toration Program Weathers a Storm in the Courts: Stop the Beach Renourishment v. Florida Department of Environmental Protection, FLA. B.J., Nov. 2010, at 11, 20. 8. Oldehoff, supra note 7, at 19–20. 9. Id. The plurality’s failure to gain the fifth vote rendered the underlying, significant private property and public access issues a “MacGuffin.” Alfred Hitchcock explained that a MacGuffin is the initial object of the central search in the plot. The characters will risk life and limb to get the MacGuffin. Nonetheless, the MacGuffin ultimately has no significance except to drive the plot. See, e.g., PETER CONRAD, THE HITCHCOCK MURDERS 10 (2001); DONALD SPOTO, THE DARK SIDE OF GENIUS: THE LIFE OF ALFRED HITCHCOCK 145 (Da Capo Press 1999) (1941). Hitchcock would allegedly explain that a MacGuffin was a diversion, like “an apparatus for trapping lions in the Scottish Highlands.” SIDNEY GOTTLIEB, FRAMING HITCHCOCK 48 (2002). 10. See Sidney F. Ansbacher et al., Stop the Beach Renourishment Stops Private Bea- chowners’ Right to Exclude the Public, 12 VT. J. ENVTL. L. 43 (2010). qÜáë=~êíáÅäÉ=ã~ó=åçí=ÄÉ=êÉéêçÇìÅÉÇI=ÇáëíêáÄìíÉÇI=çê=ÅçéáÉÇ=ïáíÜçìí=íÜÉ=éÉêãáëëáçå=çÑ=kçî~=i~ï=oÉîáÉï File: Document1 Created on: 12/16/2011 1:13:00 PM Last Printed: 12/16/2011 2:20:00 PM 590 NOVA LAW REVIEW [Vol. 35 rights alongside navigable waters, particularly as a category of property law. While the public
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