Supreme Foresight: Judicial Takings, Regulatory Takings, and the Public Trust Doctrine

Abstract

Before the Supreme Court issued its decision in Stop the Beach Renourishment, Inc., v. Florida Department of Environmental Protection, many expected the Court to finally speak about whether the public trust doctrine qualifies as a background principle for modern takings law, and whether judicial decisions can constitute an unconstitutional taking. In deciding against private property rights and in favor of states’ rights to protect their beaches, however, the Supreme Court once again avoided finally deciding these issues. Nonetheless, had the Court instead adopted the expected “foreseeability” approach to determine whether there was a judicial taking, the result would likely have been the same. That is because the public trust doctrine, which is a background principle of property law under Lucas v. South Carolina Coastal Council, allows Florida to reclaim the state’s beaches after a destructive storm and does not unconstitutionally take any private property rights.