We haven’t seen the opinion yet, but the word is out that the U.S. Supreme Court has decided the Stop Beach Renourishment case. Holding: no taking. Author of lead opinion: Justice Scalia.
This is the case that raised the question of whether government beach replenishment performed so as to create a strip of public beach between privately-owned waterfront beach homes and the water, amounted to a taking of the owners’ littoral rights.
This is another one of those fragmented decisions with several groupings of Justices agreeing on various parts of the decision, but all agreeing that there was no taking. Quoting from our fellow blogger’s post on this case (www.inversecondemnation.com), the lineup goes something like this:
“SCALIA, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, IV, and V, in which ROBERTS, C. J., and KENNEDY, THOMAS, GINSBURG, BREYER, ALITO, and SOTOMAYOR, JJ., joined, and an opinion with respect to Parts II and III, in which ROBERTS, C. J., and THOMAS and ALITO, JJ., joined. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment, in which SOTOMAYOR, J., joined. BREYER, J., filed an opinion concurring in part and concurring in the judgment, in which GINSBURG, J., joined. STEVENS, J., took no part in the decision of the case.”
Follow up. Predictably, this set of opinions has inspired a lot of online chatter by academic mavens, so we won’t attempt to duplicate their efforts now. We do recommend that if you are into this stuff you go to http://lawprofessors.typepad.com/property/ for an analysis of the decision (including the expected high-class performance by Professor Steven Eagle of George Mason University), and a bunch of links to comments by others. See Thoughts on Stop the Beach, June 18, 2010.
For more commentary and more links go to www.inversecondemnation.com There you will find a reference to Justice Scalia raising in haec verba the inquiry of how much wood would a woodchuck chuck if a woodchuck could chuck wood. No, we are not making this up.
All of which reminds us of the deathless observation of Connecticut land-use lawyer Dwight Merriam, that when the Supreme Court coins a new phrase in a pertinent opinion, that means that land-use lawyers will be buying new cars in the next three years. So it seems safe to prognosticate that the law is about to give birth to a new subspecialty: woodchuckery whose expostulation may not end the depressed condition of the automobile industry, but may have a positive effect on it once all those lawyers get busy.