Miami Herald: Column–Arcane lawsuit threatens beach restoration

The Miami Herald published this column on Nov. 30, 2009

An abstract legal theory, so outrageous in its implications that most Floridians hardly regard it as a serious, gets a full hearing in the U.S. Supreme Court Wednesday. We’re that close, if this decision comes down to a usual 5-4 split, to tossing beach restoration projects into chaos.

The legal question at the heart of Stop the Beach Renourishment vs. the State of Florida sounds more like the stuff of law professors and think-tank theoreticians than, say, someone like Steve Higgins.

But Higgins, Broward County’s beach-erosion administrator, has regarded the arcane legal arguments that propelled this case out of the Florida Panhandle with the attention he usually devotes to geological engineering or the nesting habits of sea turtles.

And Higgins, in a perpetual struggle to find the money, permits and sand to keep Broward’s 24 miles of beach from disappearing, watches with considerable trepidation. The wrong decision “could really hamstring us.”

WIDE GAP

The gap between an obtuse property-rights theory and its profound implications seems wider than Miami Beach. The case stems from a complaint by a half-dozen beachfront condo owners that when Walton County restored and widened the beach in front of their units in 2004, their property rights should have been extended to the high-water mark. They complained that because their property line no longer ran to the water’s edge, the state had unlawfully robbed them of their property rights.

And they objected that the public could now slouch along the extended beach. “They just want to kick the public off their beach. Even if it’s a small, eroding beach,” Higgins said.

Most Floridians would think that adding new sand to eroding waterfront property considerably enhances property values. Particularly in hurricane alley.

The practical realities along Florida’s 825 miles of beaches, however, elude property-rights advocates. Organizations like the Cato Institution and the Pacific Legal Foundation filed friend-of-the-court briefs, seizing on the Florida case as the vehicle to settle obscure, long festering national arguments over property rights. The theoreticians argue that a state judicial decision (in this case the Florida Supreme Court, which rejected the condo owners’ claim in 2006) violates the U.S. constitutional prohibitions against taking.

Maybe, in theory, property-rights champions have it right. In reality, beach erosion administrators like Higgins already struggle to find funding. Inland taxpayers are reluctant enough to pay for our beach restoration. Imagine asking them to compensate waterfront property owners .

A WARNING

The Florida League of Cities and the Florida Association of Counties filed a brief warning that “the beach nourishment program in Florida effectively will be eliminated if this Court decides that the state must pay takings damages to every private property owner along a beach that the state, the federal government or a local government attempts to restore.”

Such worries might not carry much legal weight Wednesday in the sterile chambers of the U.S. Supreme Court, as the lawyers deconstruct the Fifth and 14th Amendments. But the wrong decision could wash over Florida’s economy like a tidal wave.