Justices appear to favor homeowners in Florida beach dispute

Reporting from Washington — 

The Supreme Court justices, hearing a Florida case Wednesday, seemed to agree with property owners who said that their rights to a private beach could not be taken away when the state added new sand to an eroded shoreline.

The property owners have argued that their rights include not just the freedom to walk across the sand to the water, but also the right to keep others off the sand.

Owners of beachfront land everywhere “would be astounded to learn” that they do not have the right to keep others off the dry sand above the water line, said Justice Antonin Scalia, whose family owns a beach house in North Carolina.

“People pay a lot more for beachfront homes for that reason. . . . Folks can’t come in and lay down beach blankets and occupy that sand,” he said, adding that it is “quite different from having a house behind the beach at Coney Island.”

Scalia’s point was echoed by his conservative colleagues. They wondered about hot dog stands, portable toilets and “spring break beach parties” sprouting up on a formerly private beach.

They gave a sympathetic hearing to a lawyer for five owners of beach property near Pensacola, Fla., who had objected to a state-funded beach restoration project because it meant that they lost their rights to an exclusive beach.

Last year, they suffered a setback in the Florida Supreme Court, which ruled that the new 75-foot strip of sand between their beach and the water was public land and could be used by others.

The attorney, D. Kent Safriet, urged the justices to rule that this decision violated the Constitution, which says that private property may not “be taken for public use” unless the government pays for it. The state judges “redefined property rights, converting oceanfront property into ocean-view property,” Safriet said.

The Florida case has been watched closely by property rights advocates, environmentalists and state officials. The high court has never ruled that state judges have unconstitutionally taken private property. If they do so in this case, it would give property owners a weapon to challenge rulings in many states -- including Oregon, New Jersey and Michigan -- that give the public greater access to beaches and shorelines.

Justice Anthony M. Kennedy, who again is likely to cast a decisive vote, warned that the court should be cautious in second-guessing Florida’s judges when deciding property law. “We have to become real experts in Florida law,” he said. But he also voiced irritation with a Florida lawyer who insisted that the property owners lost nothing when they lost their right to a private beach.

Scott Makar, the state’s solicitor general, said that under Florida law these owners of beachfront land had only a right of “access” to the water. They “have no right to contact with the water,” he said. “The state owns the beach.”

“That’s exactly my point,” Kennedy snapped. “You say the state owns the beach, and it’s OK because there’s a protection against unreasonable use.” But when pressed, the state’s lawyer conceded that the state in the future could dump more sand and make a crowded public beach from what had been a small, private beach.

“It’s the state’s property. If they want to put an amusement park on it, they can,” interjected Chief Justice John G. Roberts Jr.

Only Justices Stephen G. Breyer and Ruth Bader Ginsburg took up the state’s defense. They said that the state had helped property owners by restoring their eroded beaches. This could be seen as a fair trade-off, they said, since the property owner lost his right to privacy and exclusivity, but gained a wider, more secure beach.

Justice John Paul Stevens, who owns a condominium on a Florida beach, was absent from the argument and presumably will take no part in the decision. That leaves open the possibility of a 4-4 tie if Kennedy were to join with the more liberal justices. But that outcome seemed less likely after Wednesday’s argument.

Beach restoration is a major issue in Florida, where 387 of the state’s 825 miles of sandy beaches have suffered “critical erosion,” according to the state. The restoration project near Pensacola began after several hurricanes struck the area.

California has had less of a problem with beach erosion, Jamee Jordan Patterson, a supervising deputy attorney general, said in an interview. But a broad ruling could have wide effect if federal judges were empowered to decide which beaches and tidelands are public and which are private, he said.

“I would hope that the Supreme Court would not deviate from the long-standing rules that the states define their property rights,” Patterson said.

Since the 19th century, California law has recognized the state’s right to fill in its own submerged land for “public beneficial purposes,” said Curtis Fossum, chief counsel of the State Lands Commission. This issue arose in 1854, when the state filled in portions of San Francisco Bay to create what is now downtown San Francisco, he said.

“I don’t think there will be any need to change California law,” Fossum said. “This has been happening since 1854.”

If the Supreme Court justices are evenly split, they will probably say so soon. If they decide to issue a written ruling, a decision may not come down until June.

david.savage@latimes.com

Times staff writer Kenneth R. Weiss in Los Angeles contributed to this report.