Stop Beach Renourishment, Inc. v. Florida Department of Environmental Protection

(Slip Opinion) OCTOBER TERM, 2009 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

STOP THE BEACH RENOURISHMENT, INC. v. FLOR-

IDA DEPARTMENT OF ENVIRONMENTAL PROTEC-

TION ET AL.

CERTIORARI TO THE SUPREME COURT OF FLORIDA

No. 08–1151. Argued December 2, 2009—Decided June 17, 2010

Florida owns in trust for the public the land permanently submerged

beneath navigable waters and the foreshore. The mean high-water

line is the ordinary boundary between private beachfront, or littoral

property, and state-owned land. Littoral owners have, inter alia,

rights to have access to the water, to use the water for certain pur

poses, to have an unobstructed view of the water, and to receive ac

cretions and relictions (collectively, accretions) to the littoral prop

erty. An accretion occurs gradually and imperceptibly, while a

sudden change is an avulsion. The littoral owner automatically takes

title to dry land added to his property by accretion. With avulsion,

however, the seaward boundary of littoral property remains what it

was: the mean high-water line before the event. Thus, when an avul

sion has added new land, the littoral owner has no right to subse

quent accretions, because the property abutting the water belongs to

the owner of the seabed (ordinarily the State).

Florida’s Beach and Shore Preservation Act establishes procedures

for depositing sand on eroded beaches (restoration) and maintaining

the deposited sand (nourishment). When such a project is under

taken, the State entity that holds title to the seabed sets a fixed “ero

sion control line” to replace the fluctuating mean high-water line as

the boundary between littoral and state property. Once the new line

is recorded, the common law ceases to apply. Thereafter, when accre

tion moves the mean high-water line seaward, the littoral property

remains bounded by the permanent erosion-control line.

Respondents the city of Destin and Walton County sought permits

to restore 6.9 miles of beach eroded by several hurricanes, adding

about 75 feet of dry sand seaward of the mean high-water line (to be

2 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-

IDA DEPT. OF ENVIRONMENTAL PROTECTION

Syllabus

denominated the erosion-control line). Petitioner, a nonprofit corpo

ration formed by owners of beachfront property bordering the project

(hereinafter Members) brought an unsuccessful administrative chal

lenge. Respondent the Florida Department of Environmental Protec

tion approved the permits, and this suit followed. The State Court of

Appeal concluded that the Department’s order had eliminated the

Members’ littoral rights (1) to receive accretions to their property and

(2) to have their property’s contact with the water remain intact.

Concluding that this would be an unconstitutional taking and would

require an additional administrative requirement to be met, it set

aside the order, remanded the proceeding, and certified to the Florida

Supreme Court the question whether the Act unconstitutionally de

prived the Members of littoral rights without just compensation. The

State Supreme Court answered “no” and quashed the remand, con

cluding that the Members did not own the property supposedly

taken. Petitioner sought rehearing on the ground that the Florida

Supreme Court’s decision effected a taking of the Members’ littoral

rights contrary to the Fifth and Fourteenth Amendments; rehearing

was denied.

Held: The judgment is affirmed.

998 So. 2d 1102, affirmed.

JUSTICE SCALIA delivered the opinion of the Court with respect to

Parts I, IV, and V, concluding that the Florida Supreme Court did not

take property without just compensation in violation of the Fifth and

Fourteenth Amendments. Pp. 24–29.

(a) Respondents’ arguments that petitioner does not own the prop

erty and that the case is not ripe were not raised in the briefs in op

position and thus are deemed waived. Pp. 24–25.

(b) There can be no taking unless petitioner can show that, before

the Florida Supreme Court’s decision, littoral property owners had

rights to future accretions and to contact with the water superior to

the State’s right to fill in its submerged land. That showing cannot

be made. Two core Florida property-law principles intersect here.

First, the State as owner of the submerged land adjacent to littoral

property has the right to fill that land, so long as it does not interfere

with the rights of the public and of littoral landowners. Second, if an

avulsion exposes land seaward of littoral property that had previ

ously been submerged, that land belongs to the State even if it inter

rupts the littoral owner’s contact with the water. Prior Florida law

suggests that there is no exception to this rule when the State causes

the avulsion. Thus, Florida law as it stood before the decision below

allowed the State to fill in its own seabed, and the resulting sudden

exposure of previously submerged land was treated like an avulsion

for ownership purposes. The right to accretions was therefore subor

Cite as: 560 U. S. ____ (2010) 3

Syllabus

dinate to the State’s right to fill. Pp. 25–27.

(c) The decision below is consistent with these principles. Cf. Lucas

v. South Carolina Coastal Council, 505 U. S. 1003, 1028–1029. It did

not abolish the Members’ right to future accretions, but merely held

that the right was not implicated by the beach-restoration project be

cause of the doctrine of avulsion. Relying on dicta in the Florida Su

preme Court’s Sand Key decision, petitioner contends that the State

took the Members’ littoral right to have the boundary always be the

mean high-water line. But petitioner’s interpretation of that dictum

contradicts the clear law governing avulsion. One cannot say the

Florida Supreme Court contravened established property law by re

jecting it. Pp. 27–29.

JUSTICE SCALIA, joined by THE CHIEF JUSTICE, JUSTICE THOMAS, and

JUSTICE ALITO, concluded in Parts II and III that if a court declares

that what was once an established right of private property no longer

exists, it has taken that property in violation of the Takings Clause.

Pp. 7–24.

(a) Though the classic taking is a transfer of property by eminent

domain, the Clause applies to other state actions that achieve the

same thing, including those that recharacterize as public property

what was previously private property, see Webb’s Fabulous Pharma

cies, Inc. v. Beckwith, 449 U. S. 155, 163–165. The Clause is not ad

dressed to the action of a specific branch or branches. It is concerned

simply with the act, not with the governmental actor. This Court’s

precedents provide no support for the proposition that takings ef

fected by the judicial branch are entitled to special treatment, and in

fact suggest the contrary. See PruneYard Shopping Center v. Robins,

447 U. S. 74, Webb’s Fabulous Pharmacies, supra. Pp. 7–20.

(b) For a judicial taking, respondents would add to the normal tak

ings inquiry the requirement that the court’s decision have no “fair

and substantial basis.” This test is not obviously appropriate, but it

is no different in this context from the requirement that the property

owner prove an established property right. Respondents’ additional

arguments—that federal courts lack the knowledge of state law re

quired to decide whether a state judicial decision purporting to clarify

property rights has instead taken them; that common-law judging

should not be deprived of needed flexibility; and that applying the

Takings Clause to judicial decisions would force lower federal courts

to review final state-court judgments, in violation of the Rooker-

Feldman doctrine, see Rooker v. Fidelity Trust Co., 263 U. S. 413,

415–416, District of Columbia Court of Appeals v. Feldman, 460 U. S.

462, 476—are unpersuasive. And petitioner’s proposed “unpredict

ability test”—that a judicial taking consists of a decision that “consti

tutes a sudden change in state law, unpredictable in terms of rele

4 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-

IDA DEPT. OF ENVIRONMENTAL PROTECTION

Syllabus

vant precedents,” Hughes v. Washington, 389 U. S. 290, 296 (Stewart,

J., concurring)—is misdirected. What counts is not whether there is

precedent for the allegedly confiscatory decision, but whether the

property right allegedly taken was well established. Pp. 20–24.

JUSTICE KENNEDY, joined by JUSTICE SOTOMAYOR, agreed that the

Florida Supreme Court did not take property without just compensa

tion, but concluded that this case does not require the Court to de

termine whether, or when, a judicial decision determining property

owners’ rights can violate the Takings Clause. If and when future

cases show that the usual principles, including constitutional ones

that constrain the judiciary like due process, are inadequate to pro

tect property owners, then the question whether a judicial decision

can effect a taking would be properly presented. Pp. 1–10.

JUSTICE BREYER, joined by JUSTICE GINSBURG, agreed that no un

constitutional taking occurred here, but concluded that it is unneces

sary to decide more than that to resolve this case. Difficult questions

of constitutional law—e.g., whether federal courts may review a state

court’s decision to determine if it unconstitutionally takes private

property without compensation, and what the proper test is for evalu

ating whether a state-court property decision enacts an unconstitu

tional taking—need not be addressed in order to dispose “of the im

mediate case.” Whitehouse v. Illinois Central R. Co., 349 U. S. 366,

373. Such questions are better left for another day. Pp. 1–3.

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 ROB-

ERTS, C. J., and KENNEDY, THOMAS, GINSBURG, BREYER, ALITO, and SO-

TOMAYOR, 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.

Cite as: 560 U. S. ____ (2010) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–1151

_________________

STOP THE BEACH RENOURISHMENT, INC.,

PETITIONER v. FLORIDA DEPARTMENT OF

ENVIRONMENTAL PROTECTION ET AL.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

FLORIDA

[June 17, 2010]

JUSTICE SCALIA announced the judgment of the Court

and delivered the opinion of the Court with respect to

Parts I, IV, and V, and an opinion with respect to Parts II

and III, in which THE CHIEF JUSTICE, JUSTICE THOMAS,

and JUSTICE ALITO join.

We consider a claim that the decision of a State’s court

of last resort took property without just compensation in

violation of the Takings Clause of the Fifth Amendment,

as applied against the States through the Fourteenth, see

Dolan v. City of Tigard, 512 U. S. 374, 383–384 (1994).

I

A

Generally speaking, state law defines property interests,

Phillips v. Washington Legal Foundation, 524 U. S. 156,

164 (1998), including property rights in navigable waters

and the lands underneath them, see United States v.

Cress, 243 U. S. 316, 319–320 (1917); St. Anthony Falls

Water Power Co. v. St. Paul Water Comm’rs, 168 U. S. 349,

358–359 (1897). In Florida, the State owns in trust for the

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Opinion of the Court

public the land permanently submerged beneath naviga

ble waters and the foreshore (the land between the low

tide line and the mean high-water line). Fla. Const.,

Art. X, §11; Broward v. Mabry, 58 Fla. 398, 407–409, 50

So. 826, 829–830 (1909). Thus, the mean high-water line

(the average reach of high tide over the preceding 19

years) is the ordinary boundary between private beach

front, or littoral1 property, and state-owned land. See

Miller v. Bay-To-Gulf, Inc., 141 Fla. 452, 458–460, 193 So.

425, 427–428 (1940) (per curiam); Fla. Stat. §§177.27(14)–

(15), 177.28(1) (2007).

Littoral owners have, in addition to the rights of the

public, certain “special rights” with regard to the water

and the foreshore, Broward, 58 Fla., at 410, 50 So., at 830,

rights which Florida considers to be property, generally

akin to easements, see ibid.; Thiesen v. Gulf, Florida &

Alabama R. Co., 75 Fla. 28, 57, 78, 78 So. 491, 500, 507

(1918) (on rehearing). These include the right of access to

the water, the right to use the water for certain purposes,

the right to an unobstructed view of the water, and the

right to receive accretions and relictions to the littoral

property. Id., at 58–59, 78 So., at 501; Board of Trustees

of Internal Improvement Trust Fund v. Sand Key Assoc.,

Ltd., 512 So. 2d 934, 936 (Fla. 1987). This is generally in

accord with well-established common law, although the

precise property rights vary among jurisdictions. Com

pare Broward, supra, at 409–410, 50 So., at 830, with 1 J.

Lewis, Law of Eminent Domain §100 (3d ed. 1909); 1 H.

Farnham, Law of Waters and Water Rights §62, pp. 278–

——————

1 Many cases and statutes use “riparian” to mean abutting any body

of water. The Florida Supreme Court, however, has adopted a more

precise usage whereby “riparian” means abutting a river or stream and

“littoral” means abutting an ocean, sea, or lake. Walton Cty. v. Stop the

Beach Renourishment, Inc., 998 So. 2d 1102, 1105, n. 3 (2008). When

speaking of the Florida law applicable to this case, we follow the

Florida Supreme Court’s terminology.

Cite as: 560 U. S. ____ (2010) 3

Opinion of the Court

280 (1904) (hereinafter Farnham).

At the center of this case is the right to accretions and

relictions. Accretions are additions of alluvion (sand,

sediment, or other deposits) to waterfront land; relictions

are lands once covered by water that become dry when the

water recedes. F. Maloney, S. Plager, & F. Baldwin, Wa

ter Law and Administration: The Florida Experience §126,

pp. 385–386 (1968) (hereinafter Maloney); 1 Farnham §69,

at 320. (For simplicity’s sake, we shall refer to accretions

and relictions collectively as accretions, and the process

whereby they occur as accretion.) In order for an addition

to dry land to qualify as an accretion, it must have oc

curred gradually and imperceptibly—that is, so slowly

that one could not see the change occurring, though over

time the difference became apparent. Sand Key, supra, at

936; County of St. Clair v. Lovingston, 23 Wall. 46, 66–67

(1874). When, on the other hand, there is a “sudden or

perceptible loss of or addition to land by the action of the

water or a sudden change in the bed of a lake or the course

of a stream,” the change is called an avulsion. Sand Key,

supra, at 936; see also 1 Farnham §69, at 320.

In Florida, as at common law, the littoral owner auto

matically takes title to dry land added to his property by

accretion; but formerly submerged land that has become

dry land by avulsion continues to belong to the owner of

the seabed (usually the State). See, e.g., Sand Key, supra,

at 937; Maloney §126.6, at 392; 2 W. Blackstone, Commen

taries on the Laws of England 261–262 (1766) (hereinafter

Blackstone). Thus, regardless of whether an avulsive

event exposes land previously submerged or submerges

land previously exposed, the boundary between littoral

property and sovereign land does not change; it remains

(ordinarily) what was the mean high-water line before the

event. See Bryant v. Peppe, 238 So. 2d 836, 838–839 (Fla.

1970); J. Gould, Law of Waters §158, p. 290 (1883). It

follows from this that, when a new strip of land has been

4 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-

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Opinion of the Court

added to the shore by avulsion, the littoral owner has no

right to subsequent accretions. Those accretions no longer

add to his property, since the property abutting the water

belongs not to him but to the State. See Maloney §126.6,

at 393; 1 Farnham §71a, at 328.

B

In 1961, Florida’s Legislature passed the Beach and

Shore Preservation Act, 1961 Fla. Laws ch. 61–246, as

amended, Fla. Stat. §§161.011–161.45 (2007). The Act

establishes procedures for “beach restoration and nour

ishment projects,” §161.088, designed to deposit sand on

eroded beaches (restoration) and to maintain the deposited

sand (nourishment). §§161.021(3), (4). A local govern

ment may apply to the Department of Environmental

Protection for the funds and the necessary permits to

restore a beach, see §§161.101(1), 161.041(1). When the

project involves placing fill on the State’s submerged

lands, authorization is required from the Board of Trus

tees of the Internal Improvement Trust Fund, see

§253.77(1), which holds title to those lands, §253.12(1).

Once a beach restoration “is determined to be under

taken,” the Board sets what is called “an erosion control

line.” §§161.161(3)–(5). It must be set by reference to the

existing mean high-water line, though in theory it can be

located seaward or landward of that.2 See §161.161(5).

Much of the project work occurs seaward of the erosion

control line, as sand is dumped on what was once sub

merged land. See App. 87–88. The fixed erosion-control

line replaces the fluctuating mean high-water line as the

——————

2 We assume, as the parties agree we should, that in this case the

erosion-control line is the pre-existing mean high-water line. Tr. of

Oral Arg. 11–12. Respondents concede that, if the erosion-control line

were established landward of that, the State would have taken prop

erty. Brief for Respondent Department et al. 15; Brief for Respondent

Walton County et al. 6.

Cite as: 560 U. S. ____ (2010) 5

Opinion of the Court

boundary between privately owned littoral property and

state property. §161.191(1). Once the erosion-control line

is recorded, the common law ceases to increase upland

property by accretion (or decrease it by erosion).

§161.191(2). Thus, when accretion to the shore moves the

mean high-water line seaward, the property of beachfront

landowners is not extended to that line (as the prior law

provided), but remains bounded by the permanent erosion

control line. Those landowners “continue to be entitled,”

however, “to all common-law riparian rights” other than

the right to accretions. §161.201. If the beach erodes back

landward of the erosion-control line over a substantial

portion of the shoreline covered by the project, the Board

may, on its own initiative, or must, if asked by the owners

or lessees of a majority of the property affected, direct the

agency responsible for maintaining the beach to return the

beach to the condition contemplated by the project. If that

is not done within a year, the project is canceled and the

erosion-control line is null and void. §161.211(2), (3).

Finally, by regulation, if the use of submerged land would

“unreasonably infringe on riparian rights,” the project

cannot proceed unless the local governments show that

they own or have a property interest in the upland prop

erty adjacent to the project site. Fla. Admin. Code Rule

18–21.004(3)(b) (2009).

C

In 2003, the city of Destin and Walton County applied

for the necessary permits to restore 6.9 miles of beach

within their jurisdictions that had been eroded by several

hurricanes. The project envisioned depositing along that

shore sand dredged from further out. See Walton Cty. v.

Stop the Beach Renourishment, Inc., 998 So. 2d 1102, 1106

(Fla. 2008). It would add about 75 feet of dry sand sea

ward of the mean high-water line (to be denominated the

erosion-control line). The Department issued a notice of

6 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-

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Opinion of the Court

intent to award the permits, App. 27–41, and the Board

approved the erosion-control line, id., at 49–50.

The petitioner here, Stop the Beach Renourishment,

Inc., is a nonprofit corporation formed by people who own

beachfront property bordering the project area (we shall

refer to them as the Members). It brought an administra

tive challenge to the proposed project, see id., at 10–26,

which was unsuccessful; the Department approved the

permits. Petitioner then challenged that action in state

court under the Florida Administrative Procedure Act,

Fla. Stat. §120.68 (2007). The District Court of Appeal for

the First District concluded that, contrary to the Act’s

preservation of “all common-law riparian rights,” the order

had eliminated two of the Members’ littoral rights: (1) the

right to receive accretions to their property; and (2) the

right to have the contact of their property with the water

remain intact. Save Our Beaches, Inc. v. Florida Dept. of

Environmental Protection, 27 So. 3d 48, 57 (2006). This, it

believed, would be an unconstitutional taking, which

would “unreasonably infringe on riparian rights,” and

therefore require the showing under Fla. Admin. Code

Rule 18–21.004(3)(b) that the local governments owned or

had a property interest in the upland property. It set

aside the Department’s final order approving the permits

and remanded for that showing to be made. 27 So. 3d, at

60. It also certified to the Florida Supreme Court the

following question (as rephrased by the latter court):

“On its face, does the Beach and Shore Preservation

Act unconstitutionally deprive upland owners of litto

ral rights without just compensation?”3 998 So. 2d, at

1105 (footnotes omitted).

——————

3 The

Florida Supreme Court seemingly took the question to refer to

constitutionality under the Florida Constitution, which contains a

clause similar to the Takings Clause of the Federal Constitution.

Compare Fla. Const., Art. X, §6, cl. (a), with U. S. Const., Amdt. 5.

Cite as: 560 U. S. ____ (2010) 7

the Court

Opinion of SCALIA, J.

The Florida Supreme Court answered the certified

question in the negative, and quashed the First District’s

remand. Id., at 1121. It faulted the Court of Appeal for

not considering the doctrine of avulsion, which it con

cluded permitted the State to reclaim the restored beach

on behalf of the public. Id., at 1116–1118. It described the

right to accretions as a future contingent interest, not a

vested property right, and held that there is no littoral

right to contact with the water independent of the littoral

right of access, which the Act does not infringe. Id., at

1112, 1119–1120. Petitioner sought rehearing on the

ground that the Florida Supreme Court’s decision itself

effected a taking of the Members’ littoral rights contrary

to the Fifth and Fourteenth Amendments to the Federal

Constitution.4 The request for rehearing was denied. We

granted certiorari, 557 U. S. ___ (2009).

II

A

Before coming to the parties’ arguments in the present

case, we discuss some general principles of our takings

jurisprudence. The Takings Clause—“nor shall private

property be taken for public use, without just compensa

tion,” U. S. Const., Amdt. 5—applies as fully to the taking

of a landowner’s riparian rights as it does to the taking of

an estate in land.5 See Yates v. Milwaukee, 10 Wall. 497,

504 (1871). Moreover, though the classic taking is a trans

——————

4 We ordinarily do not consider an issue first presented to a state

court in a petition for rehearing if the state court did not address it.

See Adams v. Robertson, 520 U. S. 83, 89, n. 3 (1997) (per curiam). But

where the state-court decision itself is claimed to constitute a violation

of federal law, the state court’s refusal to address that claim put for

ward in a petition for rehearing will not bar our review. See Brinker

hoff-Faris Trust & Sav. Co. v. Hill, 281 U. S. 673, 677–678 (1930).

5 We thus need not resolve whether the right of accretion is an ease

ment, as petitioner claims, or, as Florida claims, a contingent future

interest.

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Opinion of SCALIA, J.

fer of property to the State or to another private party by

eminent domain, the Takings Clause applies to other state

actions that achieve the same thing. Thus, when the

government uses its own property in such a way that it

destroys private property, it has taken that property. See

United States v. Causby, 328 U. S. 256, 261–262 (1946);

Pumpelly v. Green Bay Co., 13 Wall. 166, 177–178 (1872).

Similarly, our doctrine of regulatory takings “aims to

identify regulatory actions that are functionally equivalent

to the classic taking.” Lingle v. Chevron U. S. A. Inc., 544

U. S. 528, 539 (2005). Thus, it is a taking when a state

regulation forces a property owner to submit to a perma

nent physical occupation, Loretto v. Teleprompter Manhat

tan CATV Corp., 458 U. S. 419, 425–426 (1982), or de

prives him of all economically beneficial use of his

property, Lucas v. South Carolina Coastal Council, 505

U. S. 1003, 1019 (1992). Finally (and here we approach

the situation before us), States effect a taking if they

recharacterize as public property what was previously

private property. See Webb’s Fabulous Pharmacies, Inc. v.

Beckwith, 449 U. S. 155, 163–165 (1980).

The Takings Clause (unlike, for instance, the Ex Post

Facto Clauses, see Art. I, §9, cl. 3; §10, cl. 1) is not ad

dressed to the action of a specific branch or branches. It is

concerned simply with the act, and not with the govern

mental actor (“nor shall private property be taken” (em

phasis added)). There is no textual justification for saying

that the existence or the scope of a State’s power to expro

priate private property without just compensation varies

according to the branch of government effecting the expro

priation. Nor does common sense recommend such a

principle. It would be absurd to allow a State to do by

judicial decree what the Takings Clause forbids it to do by

legislative fiat. See Stevens v. Cannon Beach, 510 U. S.

1207, 1211–1212 (1994) (SCALIA, J., dissenting from denial

of certiorari).

Cite as: 560 U. S. ____ (2010) 9

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Opinion of SCALIA, J.

Our precedents provide no support for the proposition

that takings effected by the judicial branch are entitled to

special treatment, and in fact suggest the contrary.

PruneYard Shopping Center v. Robins, 447 U. S. 74

(1980), involved a decision of the California Supreme

Court overruling one of its prior decisions which had held

that the California Constitution’s guarantees of freedom of

speech and of the press, and of the right to petition the

government, did not require the owner of private property

to accord those rights on his premises. The appellants,

owners of a shopping center, contended that their private

property rights could not “be denied by invocation of a

state constitutional provision or by judicial reconstruction

of a State’s laws of private property,” id., at 79 (emphasis

added). We held that there had been no taking, citing

cases involving legislative and executive takings, and

applying standard Takings Clause analysis. See id., at

82–84. We treated the California Supreme Court’s appli

cation of the constitutional provisions as a regulation of

the use of private property, and evaluated whether that

regulation violated the property owners’ “right to exclude

others,” id., at 80 (internal quotation marks omitted). Our

opinion addressed only the claimed taking by the constitu

tional provision. Its failure to speak separately to the

claimed taking by “judicial reconstruction of a State’s laws

of private property” certainly does not suggest that a

taking by judicial action cannot occur, and arguably sug

gests that the same analysis applicable to taking by con

stitutional provision would apply.

Webb’s Fabulous Pharmacies, supra, is even closer in

point. There the purchaser of an insolvent corporation

had interpleaded the corporation’s creditors, placing the

purchase price in an interest-bearing account in the regis

try of the Circuit Court of Seminole County, to be distrib

uted in satisfaction of claims approved by a receiver. The

Florida Supreme Court construed an applicable statute to

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Opinion of SCALIA, J.

mean that the interest on the account belonged to the

county, because the account was “considered ‘public

money,’ ” Beckwith v. Webb’s Fabulous Pharmacies, 374

So. 2d 951, 952–953 (1979) (per curiam). We held this to

be a taking. We noted that “[t]he usual and general rule is

that any interest on an interpleaded and deposited fund

follows the principal and is to be allocated to those who

are ultimately to be the owners of that principal,” 449

U. S., at 162. “Neither the Florida Legislature by statute,

nor the Florida courts by judicial decree,” we said, “may

accomplish the result the county seeks simply by rechar

acterizing the principal as ‘public money.’ ” Id., at 164.

In sum, the Takings Clause bars the State from taking

private property without paying for it, no matter which

branch is the instrument of the taking. To be sure, the

manner of state action may matter: Condemnation by

eminent domain, for example, is always a taking, while a

legislative, executive, or judicial restriction of property use

may or may not be, depending on its nature and extent.

But the particular state actor is irrelevant. If a legislature

or a court declares that what was once an established

right of private property no longer exists, it has taken that

property, no less than if the State had physically appro

priated it or destroyed its value by regulation. “[A] State,

by ipse dixit, may not transform private property into

public property without compensation.” Ibid.

B

JUSTICE BREYER’s concurrence says that we need nei

ther (1) to decide whether the judiciary can ever effect a

taking, nor (2) to establish the standard for determining

whether it has done so. See post, at 1–2 (opinion concur

ring in part and concurring in judgment). The second part

of this is surely incompatible with JUSTICE BREYER’s

conclusion that the “Florida Supreme Court’s decision in

this case did not amount to a ‘judicial taking.’ ” Post, at 3.

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One cannot know whether a takings claim is invalid with

out knowing what standard it has failed to meet.6 Which

means that JUSTICE BREYER must either (a) grapple with

the artificial question of what would constitute a judicial

taking if there were such a thing as a judicial taking

(reminiscent of the perplexing question how much wood

would a woodchuck chuck if a woodchuck could chuck

wood?), or (b) answer in the negative what he considers to

be the “unnecessary” constitutional question whether

there is such a thing as a judicial taking.

It is not true that deciding the constitutional question in

this case contradicts our settled practice. To the contrary,

we have often recognized the existence of a constitutional

right, or established the test for violation of such a right

(or both), and then gone on to find that the claim at issue

fails. See, e.g., New Jersey v. T. L. O., 469 U. S. 325, 333,

341–343 (1985) (holding that the Fourth Amendment

applies to searches and seizures conducted by public

school officials, establishing the standard for finding a

violation, but concluding that the claim at issue failed);

Strickland v. Washington, 466 U. S. 668, 687, 698–700

(1984) (recognizing a constitutional right to effective assis

tance of counsel, establishing the test for its violation, but

holding that the claim at issue failed); Hill v. Lockhart,

474 U. S. 52, 58–60 (1985) (holding that a Strickland

claim can be brought to challenge a guilty plea, but reject

ing the claim at issue); Jackson v. Virginia, 443 U. S. 307,

313–320, 326 (1979) (recognizing a due process claim

based on insufficiency of evidence, establishing the govern

ing test, but concluding that the claim at issue failed);

Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 390,

——————

6 Thus, the landmark case of Penn Central Trans. Co. v. New York,

438 U. S. 104, 124–128, 138 (1978), held that there was no taking only

after setting forth a multi-factor test for determining whether a regula

tion restricting the use of property effects a taking.

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395–397 (1926) (recognizing that block zoning ordinances

could constitute a taking, but holding that the challenged

ordinance did not do so); Chicago, B. & Q. R. Co. v. Chi

cago, 166 U. S. 226, 241, 255–257 (1897) (holding that the

Due Process Clause of the Fourteenth Amendment prohib

its uncompensated takings, but concluding that the court

below made no errors of law in assessing just compensa

tion). In constitutional-tort suits against public officials,

we have found the defendants entitled to immunity only

after holding that their action violated the Constitution.

See, e.g., Wilson v. Layne, 526 U. S. 603, 605–606 (1999).

Indeed, up until last Term, we required federal courts to

address the constitutional question before the immunity

question. See Saucier v. Katz, 533 U. S. 194, 201 (2001),

overruled by Pearson v. Callahan, 555 U. S. ___, ___

(2009) (slip op., at 10).

“Assuming without deciding” would be less appropriate

here than it was in many of those earlier cases, which

established constitutional rights quite separate from any

that had previously been acknowledged. Compared to

Strickland’s proclamation of a right to effective assistance

of counsel, for example, proclaiming that a taking can

occur through judicial action addresses a point of relative

detail.

In sum, JUSTICE BREYER cannot decide that petitioner’s

claim fails without first deciding what a valid claim would

consist of. His agreement with Part IV of our opinion

necessarily implies agreement with the test for a judicial

taking (elaborated in Part II–A) which Part IV applies:

whether the state court has “declare[d] that what was

once an established right of private property no longer

exists,” supra, at 10. JUSTICE BREYER must either agree

with that standard or craft one of his own. And agreeing

to or crafting a hypothetical standard for a hypothetical

constitutional right is sufficiently unappealing (we have

eschewed that course many times in the past) that

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JUSTICE BREYER might as well acknowledge the right as

well. Or he could avoid the need to agree with or craft a

hypothetical standard by denying the right. But embrac

ing a standard while being coy about the right is, well,

odd; and deciding this case while addressing neither the

standard nor the right is quite impossible.

JUSTICE BREYER responds that he simply advocates

resolving this case without establishing “the precise stan

dard under which a party wins or loses.” Post, at 3 (em

phasis added). But he relies upon no standard at all,

precise or imprecise. He simply pronounces that this is

not a judicial taking if there is such a thing as a judicial

taking. The cases he cites to support this Queen-of-Hearts

approach provide no precedent. In each of them the exis

tence of the right in question was settled,7 and we faced a

choice between competing standards that had been applied

by the courts.8 We simply held that the right in question

had not been infringed under any of them. There is no

established right here, and no competing standards.

——————

7 See Smith v. Spisak, 558 U. S. ___, ___ (2010) (slip op., at 9–16)

(ineffective assistance of counsel); Quilloin v. Walcott, 434 U. S. 246,

255 (1978) (equal protection); Mercer v. Theriot, 377 U. S. 152, 155

(1964) (per curiam) (right to judgment notwithstanding the verdict

where evidence is lacking).

8 See Spisak, supra, at ___ (slip op., at 16). Quilloin’s cryptic rejection

of the claim “[u]nder any standard of review,” 434 U. S., at 256, could

only refer to the various levels of scrutiny—such as “strict” or “rational

basis”—that we had applied to equal-protection claims, see Loving v.

Virginia, 388 U. S. 1, 8–9 (1967). And in Mercer, which found the

evidence “sufficient under any standard which might be appropriate—

state or federal,” 377 U. S., at 156, one of the parties had argued for an

established standard under Louisiana law, and the other for an estab

lished federal standard. Compare Brief for Petitioner in Mercer v.

Theriot, O. T. 1963, No. 336, pp. 18–22, with Brief for Respondent in

Mercer v. Theriot, p. 5.

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C

Like JUSTICE BREYER’s concurrence, JUSTICE

KENNEDY’s concludes that the Florida Supreme Court’s

action here does not meet the standard for a judicial tak

ing, while purporting not to determine what is the stan

dard for a judicial taking, or indeed whether such a thing

as a judicial taking even exists. That approach is invalid

for the reasons we have discussed.

JUSTICE KENNEDY says that we need not take what he

considers the bold and risky step of holding that the Tak

ings Clause applies to judicial action, because the Due

Process Clause “would likely prevent a State from doing

by judicial decree what the Takings Clause forbids it to do

by legislative fiat,” post, at 4–5 (opinion concurring in part

and concurring in judgment) (internal quotation marks

omitted). He invokes the Due Process Clause “in both its

substantive and procedural aspects,” post, at 3, not speci

fying which of his arguments relates to which.

The first respect in which JUSTICE KENNEDY thinks the

Due Process Clause can do the job seems to sound in

Procedural Due Process. Because, he says, “[c]ourts,

unlike the executive or legislature, are not designed to

make policy decisions” about expropriation, “[t]he Court

would be on strong footing in ruling that a judicial deci

sion that eliminates or substantially changes established

property rights” violates the Due Process Clause. Post, at

4. Let us be clear what is being proposed here. This Court

has held that the separation-of-powers principles that the

Constitution imposes upon the Federal Government do not

apply against the States. See Dreyer v. Illinois, 187 U. S.

71, 83–84 (1902). But in order to avoid the bold and risky

step of saying that the Takings Clause applies to all gov

ernment takings, JUSTICE KENNEDY would have us use

Procedural Due Process to impose judicially crafted sepa

ration-of-powers limitations upon the States: courts can

not be used to perform the governmental function of ex

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propriation. The asserted reasons for the due-process

limitation are that the legislative and executive branches

“are accountable in their political capacity” for takings,

post, at 2, and “[c]ourts . . . are not designed to make policy

decisions” about takings, post, at 4. These reasons may

have a lot to do with sound separation-of-powers principles

that ought to govern a democratic society, but they have

nothing whatever to do with the protection of individual

rights that is the object of the Due Process Clause.

Of course even taking those reasons at face value, it is

strange to proclaim a democracy deficit and lack of special

competence for the judicial taking of an individual prop

erty right, when this Court has had no trouble deciding

matters of much greater moment, contrary to congres

sional desire or the legislated desires of most of the States,

with no special competence except the authority we pos

sess to enforce the Constitution. In any case, our opinion

does not trust judges with the relatively small power

JUSTICE KENNEDY now objects to. It is we who propose

setting aside judicial decisions that take private property;

it is he who insists that judges cannot be so limited. Un

der his regime, the citizen whose property has been judi

cially redefined to belong to the State would presumably

be given the Orwellian explanation: “The court did not

take your property. Because it is neither politically ac

countable nor competent to make such a decision, it can

not take property.”

JUSTICE KENNEDY’s injection of separation-of-powers

principles into the Due Process Clause would also have the

ironic effect of preventing the assignment of the expropria

tion function to the branch of government whose proce

dures are, by far, the most protective of individual rights.

So perhaps even this first respect in which JUSTICE KEN-

NEDY would have the Due Process Clause do the work of

the Takings Clause pertains to Substantive, rather than

Procedural, Due Process. His other arguments undoubt

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edly pertain to that, as evidenced by his assertion that “[i]t

is . . . natural to read the Due Process Clause as limiting

the power of courts to eliminate or change established

property rights,” post, at 3, his endorsement of the propo

sition that the Due Process Clause imposes “limits on

government’s ability to diminish property values by regu

lation,” ibid., and his contention that “the Due Process

Clause would likely prevent a State from doing by judicial

decree what the Takings Clause forbids it to do by legisla

tive fiat,” post, at 4 (internal quotation marks omitted).

The first problem with using Substantive Due Process to

do the work of the Takings Clause is that we have held it

cannot be done. “Where a particular Amendment ‘pro

vides an explicit textual source of constitutional protec

tion’ against a particular sort of government behavior,

‘that Amendment, not the more generalized notion of

“substantive due process,” must be the guide for analyzing

these claims.’ ” Albright v. Oliver, 510 U. S. 266, 273

(1994) (four-Justice plurality opinion) (quoting Graham v.

Connor, 490 U. S. 386, 395 (1989)); see also 510 U. S., at

281 (KENNEDY, J., concurring in judgment) (“I agree with

the plurality that an allegation of arrest without probable

cause must be analyzed under the Fourth Amendment

without reference to more general considerations of due

process”). The second problem is that we have held for

many years (logically or not) that the “liberties” protected

by Substantive Due Process do not include economic liber

ties. See, e.g., Lincoln Fed. Labor Union v. Northwestern

Iron & Metal Co., 335 U. S. 525, 536 (1949). JUSTICE

KENNEDY’s language (“If a judicial decision . . . eliminates

an established property right, the judgment could be set

aside as a deprivation of property without due process of

law,” post, at 3) propels us back to what is referred to

(usually deprecatingly) as “the Lochner era.” See Lochner

v. New York, 198 U. S 45, 56–58 (1905). That is a step of

much greater novelty, and much more unpredictable

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effect, than merely applying the Takings Clause to judicial

action. And the third and last problem with using Sub

stantive Due Process is that either (1) it will not do all

that the Takings Clause does, or (2) if it does all that the

Takings Clause does, it will encounter the same supposed

difficulties that JUSTICE KENNEDY finds troublesome.

We do not grasp the relevance of JUSTICE KENNEDY’s

speculation, post, at 6, that the Framers did not envision

the Takings Clause would apply to judicial action. They

doubtless did not, since the Constitution was adopted in

an era when courts had no power to “change” the common

law. See 1 Blackstone 69–70 (1765); Rogers v. Tennessee,

532 U. S. 451, 472–478 (2001) (SCALIA, J., dissenting).

Where the text they adopted is clear, however (“nor shall

private property be taken for public use”), what counts is

not what they envisioned but what they wrote. Of course

even after courts, in the 19th century, did assume the

power to change the common law, it is not true that the

new “common-law tradition . . . allows for incremental

modifications to property law,” post, at 4, so that “owners

may reasonably expect or anticipate courts to make cer

tain changes in property law,” post, at 6. In the only sense

in which this could be relevant to what we are discussing,

that is an astounding statement. We are talking here

about judicial elimination of established private property

rights. If that is indeed a “common-law tradition,”

JUSTICE KENNEDY ought to be able to provide a more solid

example for it than the only one he cites, post, at 5, a

state-court change (from “noxious” to “harmful”) of the test

for determining whether a neighbor’s vegetation is a tor

tious nuisance. Fancher v. Fagella, 274 Va. 549, 555–556,

650 S. E. 2d 519, 522 (2007). But perhaps he does not

really mean that it is a common-law tradition to eliminate

property rights, since he immediately follows his state

ment that “owners may reasonably expect or anticipate

courts to make certain changes in property law” with the

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contradictory statement that “courts cannot abandon

settled principles,” post, at 6. If no “settled principl[e]” has

been abandoned, it is hard to see how property law could

have been “change[d],” rather than merely clarified.

JUSTICE KENNEDY has added “two additional practical

considerations that the Court would need to address be

fore recognizing judicial takings,” post, at 7. One of them

is simple and simply answered: the assertion that “it is

unclear what remedy a reviewing court could enter after

finding a judicial taking,” post, at 8. JUSTICE KENNEDY

worries that we may only be able to mandate compensa

tion. That remedy is even rare for a legislative or execu

tive taking, and we see no reason why it would be the

exclusive remedy for a judicial taking. If we were to hold

that the Florida Supreme Court had effected an uncom

pensated taking in the present case, we would simply

reverse the Florida Supreme Court’s judgment that the

Beach and Shore Preservation Act can be applied to the

property in question. JUSTICE KENNEDY’s other point,

post, at 7–8—that we will have to decide when the claim of

a judicial taking must be asserted—hardly presents an

awe-inspiring prospect. These, and all the other “difficul

ties,” post, at 1, “difficult questions,” post, at 5, and “prac

tical considerations” post, at 7, that JUSTICE KENNEDY

worries may perhaps stand in the way of recognizing a

judicial taking, are either nonexistent or insignificant.

Finally, we cannot avoid comment upon JUSTICE

KENNEDY’s donning of the mantle of judicial restraint—

his assertion that it is we, and not he, who would empower

the courts and encourage their expropriation of private

property. He warns that if judges know that their action

is covered by the Takings Clause, they will issue “sweep

ing new rule[s] to adjust the rights of property owners,”

comfortable in the knowledge that their innovations will

be preserved upon payment by the State. Post, at 6. That

is quite impossible. As we have said, if we were to hold

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that the Florida Supreme Court had effected an uncom

pensated taking in this case, we would not validate the

taking by ordering Florida to pay compensation. We

would simply reverse the Florida Supreme Court’s judg

ment that the Beach and Shore Preservation Act can be

applied to the Members’ property. The power to effect a

compensated taking would then reside, where it has al

ways resided, not in the Florida Supreme Court but in the

Florida Legislature—which could either provide compen

sation or acquiesce in the invalidity of the offending fea

tures of the Act. Cf. Davis v. Michigan Dept. of Treasury,

489 U. S. 803, 817–818 (1989). The only realistic incentive

that subjection to the Takings Clause might provide to any

court would be the incentive to get reversed, which in our

experience few judges value.

JUSTICE KENNEDY, however, while dismissive of the

Takings Clause, places no other constraints on judicial

action. He puts forward some extremely vague applica

tions of Substantive Due Process, and does not even say

that they (whatever they are) will for sure apply. (“It is

thus natural to read the Due Process Clause as limiting

the power of courts to eliminate or change established

property rights,” post, at 3; “courts . . . may not have the

power to eliminate established property rights by judicial

decision,” post, at 4; “the Due Process Clause would likely

prevent a State from doing by judicial decree what the

Takings Clause forbids it to do by legislative fiat,” post, at

4–5 (internal quotation marks omitted); we must defer

applying the Takings Clause until “[i]f and when future

cases show that the usual principles, including constitu

tional principles that constrain the judiciary like due

process, are somehow inadequate to protect property

owners,” post, at 10.)

Moreover, and more importantly, JUSTICE KENNEDY

places no constraints whatever upon this Court. Not only

does his concurrence only think about applying Substan

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tive Due Process; but because Substantive Due Process is

such a wonderfully malleable concept, see, e.g., Lawrence

v. Texas, 539 U. S. 558, 562 (2003) (referring to “liberty of

the person both in its spatial and in its more transcendent

dimensions”), even a firm commitment to apply it would be

a firm commitment to nothing in particular. JUSTICE

KENNEDY’s desire to substitute Substantive Due Process

for the Takings Clause suggests, and the rest of what he

writes confirms, that what holds him back from giving the

Takings Clause its natural meaning is not the intrusive

ness of applying it to judicial action, but the definiteness of

doing so; not a concern to preserve the powers of the

States’ political branches, but a concern to preserve this

Court’s discretion to say that property may be taken, or

may not be taken, as in the Court’s view the circumstances

suggest. We must not say that we are bound by the Con

stitution never to sanction judicial elimination of clearly

established property rights. Where the power of this

Court is concerned, one must never say never. See, e.g.,

Vieth v. Jubelirer, 541 U. S. 267, 302–305 (2004) (plurality

opinion); Sosa v. Alvarez-Machain, 542 U. S. 692, 750–751

(2004) (SCALIA, J., concurring in part and concurring in

judgment). The great attraction of Substantive Due Proc

ess as a substitute for more specific constitutional guaran

tees is that it never means never—because it never means

anything precise.

III

Respondents put forward a number of arguments which

contradict, to a greater or lesser degree, the principle

discussed above, that the existence of a taking does not

depend upon the branch of government that effects it.

First, in a case claiming a judicial taking they would add

to our normal takings inquiry a requirement that the

court’s decision have no “fair and substantial basis.” This

is taken from our jurisprudence dealing with the question

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whether a state-court decision rests upon adequate and

independent state grounds, placing it beyond our jurisdic

tion to review. See E. Gressman, K. Geller, S. Shapiro, T.

Bishop, & E. Hartnett, Supreme Court Practice, ch. 3.26,

p. 222 (9th ed. 2007). To assure that there is no “evasion”

of our authority to review federal questions, we insist that

the nonfederal ground of decision have “fair support.”

Broad River Power Co. v. South Carolina ex rel. Daniel,

281 U. S. 537, 540 (1930); see also Ward v. Board of

Comm’rs of Love Cty., 253 U. S. 17, 22–23 (1920). A test

designed to determine whether there has been an evasion

is not obviously appropriate for determining whether there

has been a taking of property. But if it is to be extended

there it must mean (in the present context) that there is a

“fair and substantial basis” for believing that petitioner’s

Members did not have a property right to future accretions

which the Act would take away. This is no different, we

think, from our requirement that petitioners’ Members

must prove the elimination of an established property

right.9

Next, respondents argue that federal courts lack the

knowledge of state law required to decide whether a judi

——————

9 JUSTICE BREYER complains that we do not set forth “procedural limi

tations or canons of deference” to restrict federal-court review of state

court property decisions. See post, at 2. (1) To the extent this is true it

is unsurprising, but (2) fundamentally, it is false: (1) It is true that we

make our own determination, without deference to state judges,

whether the challenged decision deprives the claimant of an established

property right. That is unsurprising because it is what this Court does

when determining state-court compliance with all constitutional

imperatives. We do not defer to the judgment of state judges in deter

mining whether, for example, a state-court decision has deprived a

defendant of due process or subjected him to double jeopardy. (2) The

test we have adopted, however (deprivation of an established property

right), contains within itself a considerable degree of deference to state

courts. A property right is not established if there is doubt about its

existence; and when there is doubt we do not make our own assessment

but accept the determination of the state court.

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cial decision that purports merely to clarify property

rights has instead taken them. But federal courts must

often decide what state property rights exist in nontakings

contexts, see, e.g., Board of Regents of State Colleges v.

Roth, 408 U. S. 564, 577–578 (1972) (Due Process Clause).

And indeed they must decide it to resolve claims that

legislative or executive action has effected a taking. For

example, a regulation that deprives a property owner of all

economically beneficial use of his property is not a taking

if the restriction “inhere[s] in the title itself, in the restric

tions that background principles of the State’s law of

property and nuisance already place upon land owner

ship.” Lucas, 505 U. S., at 1029. A constitutional provi

sion that forbids the uncompensated taking of property is

quite simply insusceptible of enforcement by federal courts

unless they have the power to decide what property rights

exist under state law.

Respondents also warn us against depriving common

law judging of needed flexibility. That argument has little

appeal when directed against the enforcement of a consti

tutional guarantee adopted in an era when, as we said

supra, at 17, courts had no power to “change” the common

law. But in any case, courts have no peculiar need of

flexibility. It is no more essential that judges be free to

overrule prior cases that establish property entitlements

than that state legislators be free to revise pre-existing

statutes that confer property entitlements, or agency

heads pre-existing regulations that do so. And insofar as

courts merely clarify and elaborate property entitlements

that were previously unclear, they cannot be said to have

taken an established property right.

Finally, the city and county argue that applying the

Takings Clause to judicial decisions would force lower

federal courts to review final state-court judgments, in

violation of the so-called Rooker-Feldman doctrine. See

Rooker v. Fidelity Trust Co., 263 U. S. 413, 415–416

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(1923); District of Columbia Court of Appeals v. Feldman,

460 U. S. 462, 476 (1983). That does not necessarily fol

low. The finality principles that we regularly apply to

takings claims, see Williamson County Regional Planning

Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172,

186–194 (1985), would require the claimant to appeal a

claimed taking by a lower court to the state supreme

court, whence certiorari would come to this Court. If

certiorari were denied, the claimant would no more be able

to launch a lower-court federal suit against the taking

effected by the state supreme-court opinion than he would

be able to launch such a suit against a legislative or execu

tive taking approved by the state supreme-court opinion;

the matter would be res judicata. And where the claimant

was not a party to the original suit, he would be able to

challenge in federal court the taking effected by the state

supreme-court opinion to the same extent that he would

be able to challenge in federal court a legislative or execu

tive taking previously approved by a state supreme-court

opinion.

For its part, petitioner proposes an unpredictability test.

Quoting Justice Stewart’s concurrence in Hughes v. Wash

ington, 389 U. S. 290, 296 (1967), petitioner argues that a

judicial taking consists of a decision that “ ‘constitutes a

sudden change in state law, unpredictable in terms of

relevant precedents.’ ” See Brief for Petitioner 17, 34–50.

The focus of petitioner’s test is misdirected. What counts

is not whether there is precedent for the allegedly confis

catory decision, but whether the property right allegedly

taken was established. A “predictability of change” test

would cover both too much and too little. Too much, be

cause a judicial property decision need not be predictable,

so long as it does not declare that what had been private

property under established law no longer is. A decision

that clarifies property entitlements (or the lack thereof)

that were previously unclear might be difficult to predict,

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but it does not eliminate established property rights. And

the predictability test covers too little, because a judicial

elimination of established private-property rights that is

foreshadowed by dicta or even by holdings years in ad

vance is nonetheless a taking. If, for example, a state

court held in one case, to which the complaining property

owner was not a party, that it had the power to limit the

acreage of privately owned real estate to 100 acres, and

then, in a second case, applied that principle to declare the

complainant’s 101st acre to be public property, the State

would have taken an acre from the complainant even

though the decision was predictable.

IV

We come at last to petitioner’s takings attack on the

decision below. At the outset, respondents raise two pre

liminary points which need not detain us long. The city

and the county argue that petitioner cannot state a cause

of action for a taking because, though the Members own

private property, petitioner itself does not; and that the

claim is unripe because petitioner has not sought just

compensation. Neither objection appeared in the briefs in

opposition to the petition for writ of certiorari, and since

neither is jurisdictional,10 we deem both waived. See this

Court’s Rule 15.2; cf. Oklahoma City v. Tuttle, 471 U. S.

808, 815–816 (1985).

Petitioner argues that the Florida Supreme Court took

two of the property rights of the Members by declaring

that those rights did not exist: the right to accretions, and

the right to have littoral property touch the water (which

——————

10 Petitioner meets the two requirements necessary for an association

to assert the Article III standing of its Members. See Food and Com

mercial Workers v. Brown Group, Inc., 517 U. S. 544, 555–557 (1996).

And the claim here is ripe insofar as Article III standing is concerned,

since (accepting petitioner’s version of Florida law as true) petitioner

has been deprived of property.

Cite as: 560 U. S. ____ (2010) 25

Opinion of the Court

petitioner distinguishes from the mere right of access to

the water).11 Under petitioner’s theory, because no prior

Florida decision had said that the State’s filling of sub

merged tidal lands could have the effect of depriving a

littoral owner of contact with the water and denying him

future accretions, the Florida Supreme Court’s judgment

in the present case abolished those two easements to

which littoral property owners had been entitled. This

puts the burden on the wrong party. There is no taking

unless petitioner can show that, before the Florida Su

preme Court’s decision, littoral-property owners had rights

to future accretions and contact with the water superior to

the State’s right to fill in its submerged land. Though

some may think the question close, in our view the show

ing cannot be made.

Two core principles of Florida property law intersect in

this case. First, the State as owner of the submerged land

adjacent to littoral property has the right to fill that land,

so long as it does not interfere with the rights of the public

and the rights of littoral landowners. See Hayes v. Bow

man, 91 So. 2d 795, 799–800 (Fla. 1957) (right to fill con

veyed by State to private party); State ex rel. Buford v.

Tampa, 88 Fla. 196, 210–211, 102 So. 336, 341 (1924)

——————

11 Petitioner raises two other claims that we do not directly address.

First, petitioner tries to revive its challenge to the beach restoration

project, contending that it (rather than the Florida Supreme Court’s

opinion) constitutes a taking. Petitioner’s arguments on this score are

simply versions of two arguments it makes against the Florida Su

preme Court’s opinion: that the Department has replaced the Members’

littoral property rights with versions that are inferior because statu

tory; and that the Members previously had the right to have their

property contact the water. We reject both, infra, at 28–29, and n. 12.

Second, petitioner attempts to raise a challenge to the Act as a depriva

tion of property without due process. Petitioner did not raise this

challenge before the Florida Supreme Court, and only obliquely raised

it in the petition for certiorari. We therefore do not reach it. See

Adams, 520 U. S., at 86–87.

26 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-

IDA DEPT. OF ENVIRONMENTAL PROTECTION

Opinion of the Court

(same). Second, as we described supra, at 3–4, if an avul

sion exposes land seaward of littoral property that had

previously been submerged, that land belongs to the State

even if it interrupts the littoral owner’s contact with the

water. See Bryant, 238 So. 2d, at 837, 838–839. The issue

here is whether there is an exception to this rule when the

State is the cause of the avulsion. Prior law suggests

there is not. In Martin v. Busch, 93 Fla. 535, 112 So. 274

(1927), the Florida Supreme Court held that when the

State drained water from a lakebed belonging to the State,

causing land that was formerly below the mean high

water line to become dry land, that land continued to

belong to the State. Id., at 574, 112 So., at 287; see also

Bryant, supra, at 838–839 (analogizing the situation in

Martin to an avulsion). “ ‘The riparian rights doctrine of

accretion and reliction,’ ” the Florida Supreme Court later

explained, “ ‘does not apply to such lands.’ ” Bryant, supra,

at 839 (quoting Martin, supra, at 578, 112 So., at 288

(Brown, J., concurring)). This is not surprising, as there can

be no accretions to land that no longer abuts the water.

Thus, Florida law as it stood before the decision below

allowed the State to fill in its own seabed, and the result

ing sudden exposure of previously submerged land was

treated like an avulsion for purposes of ownership. The

right to accretions was therefore subordinate to the State’s

right to fill. Thiesen v. Gulf, Florida & Alabama R. Co.

suggests the same result. That case involved a claim by a

riparian landowner that a railroad’s state-authorized

filling of submerged land and construction of tracks upon

it interfered with the riparian landowners’ rights to access

and to wharf out to a shipping channel. The Florida Su

preme Court determined that the claimed right to wharf

out did not exist in Florida, and that therefore only the

right of access was compensable. 75 Fla., at 58–65, 78 So.,

at 501–503. Significantly, although the court recognized

that the riparian-property owners had rights to accretion,

Cite as: 560 U. S. ____ (2010) 27

Opinion of the Court

see id., at 64–65, 78 So., at 502–503, the only rights it

even suggested would be infringed by the railroad were

the right of access (which the plaintiff had claimed) and

the rights of view and use of the water (which it seems the

plaintiff had not claimed), see id., at 58–59, 78, 78 So., at

501, 507.

The Florida Supreme Court decision before us is consis

tent with these background principles of state property

law. Cf. Lucas, 505 U. S., at 1028–1029; Scranton v.

Wheeler, 179 U. S. 141, 163 (1900). It did not abolish the

Members’ right to future accretions, but merely held that

the right was not implicated by the beach-restoration

project, because the doctrine of avulsion applied. See 998

So. 2d, at 1117, 1120–1121. The Florida Supreme Court’s

opinion describes beach restoration as the reclamation by

the State of the public’s land, just as Martin had described

the lake drainage in that case. Although the opinion does

not cite Martin and is not always clear on this point, it

suffices that its characterization of the littoral right to

accretion is consistent with Martin and the other relevant

principles of Florida law we have discussed.

What we have said shows that the rule of Sand Key,

which petitioner repeatedly invokes, is inapposite. There

the Florida Supreme Court held that an artificial accretion

does not change the right of a littoral-property owner to

claim the accreted land as his own (as long as the owner

did not cause the accretion himself). 512 So. 2d, at 937–

938. The reason Martin did not apply, Sand Key ex

plained, is that the drainage that had occurred in Martin

did not lower the water level by “ ‘imperceptible degrees,’ ”

and so did not qualify as an accretion. 512 So. 2d, at 940–

941.

The result under Florida law may seem counter

intuitive. After all, the Members’ property has been de

prived of its character (and value) as oceanfront property

by the State’s artificial creation of an avulsion. Perhaps

28 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-

IDA DEPT. OF ENVIRONMENTAL PROTECTION

Opinion of the Court

state-created avulsions ought to be treated differently

from other avulsions insofar as the property right to accre

tion is concerned. But nothing in prior Florida law makes

such a distinction, and Martin suggests, if it does not

indeed hold, the contrary. Even if there might be different

interpretations of Martin and other Florida property-law

cases that would prevent this arguably odd result, we are

not free to adopt them. The Takings Clause only protects

property rights as they are established under state law,

not as they might have been established or ought to have

been established. We cannot say that the Florida Su

preme Court’s decision eliminated a right of accretion

established under Florida law.

Petitioner also contends that the State took the Mem

bers’ littoral right to have their property continually main

tain contact with the water. To be clear, petitioner does

not allege that the State relocated the property line, as

would have happened if the erosion-control line were

landward of the old mean high-water line (instead of

identical to it). Petitioner argues instead that the Mem

bers have a separate right for the boundary of their prop

erty to be always the mean high-water line. Petitioner

points to dicta in Sand Key that refers to “the right to have

the property’s contact with the water remain intact,” 512

So. 2d, at 936. Even there, the right was included in the

definition of the right to access, ibid., which is consistent

with the Florida Supreme Court’s later description that

“there is no independent right of contact with the water”

but it “exists to preserve the upland owner’s core littoral

right of access to the water,” 998 So. 2d, at 1119. Peti

tioner’s expansive interpretation of the dictum in Sand

Key would cause it to contradict the clear Florida law

governing avulsion. One cannot say that the Florida

Supreme Court contravened established property law by

Cite as: 560 U. S. ____ (2010) 29

Opinion of the Court

rejecting it.12

V

Because the Florida Supreme Court’s decision did not

contravene the established property rights of petitioner’s

Members, Florida has not violated the Fifth and Four

teenth Amendments. The judgment of the Florida Su

preme Court is therefore affirmed.

It is so ordered.

JUSTICE STEVENS took no part in the decision of this

case.

——————

12 Petitioner also argues that the Members’ other littoral rights have

been infringed because the Act replaces their common-law rights with

inferior statutory versions. Petitioner has not established that the

statutory versions are inferior; and whether the source of a property

right is the common law or a statute makes no difference, so long as the

property owner continues to have what he previously had.

Cite as: 560 U. S. ____ (2010) 1

Opinion of KENNEDY, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–1151

_________________

STOP THE BEACH RENOURISHMENT, INC.,

PETITIONER v. FLORIDA DEPARTMENT OF

ENVIRONMENTAL PROTECTION ET AL.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

FLORIDA

[June 17, 2010]

JUSTICE KENNEDY, with whom JUSTICE SOTOMAYOR

joins, concurring in part and concurring in the judgment.

The Court’s analysis of the principles that control own

ership of the land in question, and of the rights of peti

tioner’s members as adjacent owners, is correct in my

view, leading to my joining Parts I, IV, and V of the

Court’s opinion. As JUSTICE BREYER observes, however,

this case does not require the Court to determine whether,

or when, a judicial decision determining the rights of

property owners can violate the Takings Clause of the

Fifth Amendment of the United States Constitution. This

separate opinion notes certain difficulties that should be

considered before accepting the theory that a judicial

decision that eliminates an “established property right,”

ante, at 21, constitutes a violation of the Takings Clause.

The Takings Clause is an essential part of the constitu

tional structure, for it protects private property from

expropriation without just compensation; and the right to

own and hold property is necessary to the exercise and

preservation of freedom. The right to retain property

without the fact or even the threat of that sort of expro

priation is, of course, applicable to the States under the

Due Process Clause of the Fourteenth Amendment. Chi

cago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 239 (1897).

2 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-

IDA DEPT. OF ENVIRONMENTAL PROTECTION

Opinion of KENNEDY, J.

The right of the property owner is subject, however, to

the rule that the government does have power to take

property for a public use, provided that it pays just com

pensation. See First English Evangelical Lutheran

Church of Glendale v. County of Los Angeles, 482 U. S.

304, 314–315 (1987). This is a vast governmental power.

And typically, legislative bodies grant substantial discre

tion to executive officers to decide what property can be

taken for authorized projects and uses. As a result, if an

authorized executive agency or official decides that Black

acre is the right place for a fire station or Greenacre is the

best spot for a freeway interchange, then the weight and

authority of the State are used to take the property, even

against the wishes of the owner, who must be satisfied

with just compensation.

In the exercise of their duty to protect the fisc, both the

legislative and executive branches monitor, or should

monitor, the exercise of this substantial power. Those

branches are accountable in their political capacity for the

proper discharge of this obligation.

To enable officials to better exercise this great power in

a responsible way, some States allow their officials to take

a second look after property has been condemned and a

jury returns a verdict setting the amount of just compen

sation. See, e.g., Cal. Civ. Proc. Code Ann. §1268.510

(2007). If the condemning authority, usually acting

through the executive, deems the compensation too high to

pay for the project, it can decide not to take the property

at all. The landowner is reimbursed for certain costs and

expenses of litigation and the property remains in his or

her hands. See, e.g., §1268.610(a).

This is just one aspect of the exercise of the power to

select what property to condemn and the responsibility to

ensure that the taking makes financial sense from the

State’s point of view. And, as a matter of custom and

practice, these are matters for the political branches—the

Cite as: 560 U. S. ____ (2010) 3

Opinion of KENNEDY, J.

legislature and the executive—not the courts. See First

English, supra, at 321 (“[T]he decision to exercise the

power of eminent domain is a legislative function”).

If a judicial decision, as opposed to an act of the execu

tive or the legislature, eliminates an established property

right, the judgment could be set aside as a deprivation of

property without due process of law. The Due Process

Clause, in both its substantive and procedural aspects, is a

central limitation upon the exercise of judicial power. And

this Court has long recognized that property regulations

can be invalidated under the Due Process Clause. See,

e.g., Lingle v. Chevron U. S. A. Inc., 544 U. S. 528, 542

(2005); Goldblatt v. Hempstead, 369 U. S. 590, 591, 592–

593 (1962); Demorest v. City Bank Farmers Trust Co., 321

U. S. 36, 42–43 (1944); Broad River Power Co. v. South

Carolina ex rel. Daniel, 281 U. S. 537, 539, 540–541

(1930); Washington ex rel. Seattle Title Trust Co. v.

Roberge, 278 U. S. 116, 121 (1928); Nectow v. Cambridge,

277 U. S. 183, 188 (1928); Village of Euclid v. Ambler

Realty Co., 272 U. S. 365, 395 (1926); see also Pennsyl

vania Coal Co. v. Mahon, 260 U. S. 393, 413 (1922) (there

must be limits on government’s ability to diminish prop

erty values by regulation “or the contract and due process

clauses are gone”). It is thus natural to read the Due

Process Clause as limiting the power of courts to eliminate

or change established property rights.

The Takings Clause also protects property rights, and it

“operates as a conditional limitation, permitting the gov

ernment to do what it wants so long as it pays the charge.”

Eastern Enterprises v. Apfel, 524 U. S. 498, 545 (1998)

(KENNEDY, J., concurring in judgment and dissenting in

part). Unlike the Due Process Clause, therefore, the

Takings Clause implicitly recognizes a governmental

power while placing limits upon that power. Thus, if the

Court were to hold that a judicial taking exists, it would

presuppose that a judicial decision eliminating established

4 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-

IDA DEPT. OF ENVIRONMENTAL PROTECTION

Opinion of KENNEDY, J.

property rights is “otherwise constitutional” so long as the

State compensates the aggrieved property owners. Ibid.

There is no clear authority for this proposition.

When courts act without direction from the executive or

legislature, they may not have the power to eliminate

established property rights by judicial decision. “Given

that the constitutionality” of a judicial decision altering

property rights “appears to turn on the legitimacy” of

whether the court’s judgment eliminates or changes estab

lished property rights “rather than on the availability of

compensation, . . . the more appropriate constitutional

analysis arises under general due process principles

rather than under the Takings Clause.” Ibid. Courts,

unlike the executive or legislature, are not designed to

make policy decisions about “the need for, and likely effec

tiveness of, regulatory actions.” Lingle, supra, at 545.

State courts generally operate under a common-law tradi

tion that allows for incremental modifications to property

law, but “this tradition cannot justify a carte blanch judi

cial authority to change property definitions wholly free of

constitutional limitations.” Walston, The Constitution and

Property: Due Process, Regulatory Takings, and Judicial

Takings, 2001 Utah L. Rev. 379, 435.

The Court would be on strong footing in ruling that a

judicial decision that eliminates or substantially changes

established property rights, which are a legitimate expec

tation of the owner, is “arbitrary or irrational” under the

Due Process Clause. Lingle, 544 U. S., at 542; see id., at

548–549 (KENNEDY, J., concurring); see also Perry v.

Sindermann, 408 U. S. 593, 601 (1972) (“ ‘[P]roperty’ ”

interests protected by the Due Process Clauses are those

“that are secured by ‘existing rules or understandings’ ”

(quoting Board of Regents of State Colleges v. Roth, 408

U. S. 564, 577 (1972))). Thus, without a judicial takings

doctrine, the Due Process Clause would likely prevent a

State from doing “by judicial decree what the Takings

Cite as: 560 U. S. ____ (2010) 5

Opinion of KENNEDY, J.

Clause forbids it to do by legislative fiat.” Ante, at 8. The

objection that a due process claim might involve close

questions concerning whether a judicial decree extends

beyond what owners might have expected is not a sound

argument; for the same close questions would arise with

respect to whether a judicial decision is a taking. See

Apfel, supra, at 541 (opinion of KENNEDY, J.) (“Cases

attempting to decide when a regulation becomes a taking

are among the most litigated and perplexing in current

law”); Penn Central Transp. Co. v. New York City, 438

U. S. 104, 123 (1978) (“The question of what constitutes a

‘taking’ for purposes of the Fifth Amendment has proved

to be a problem of considerable difficulty”).

To announce that courts too can effect a taking when

they decide cases involving property rights, would raise

certain difficult questions. Since this case does not require

those questions to be addressed, in my respectful view, the

Court should not reach beyond the necessities of the case

to announce a sweeping rule that court decisions can be

takings, as that phrase is used in the Takings Clause. The

evident reason for recognizing a judicial takings doctrine

would be to constrain the power of the judicial branch. Of

course, the judiciary must respect private ownership. But

were this Court to say that judicial decisions become

takings when they overreach, this might give more power

to courts, not less.

Consider the instance of litigation between two property

owners to determine which one bears the liability and

costs when a tree that stands on one property extends its

roots in a way that damages adjacent property. See, e.g.,

Fancher v. Fagella, 274 Va. 549, 650 S. E. 2d 519 (2007).

If a court deems that, in light of increasing urbanization,

the former rule for allocation of these costs should be

changed, thus shifting the rights of the owners, it may

well increase the value of one property and decrease the

value of the other. This might be the type of incremental

6 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-

IDA DEPT. OF ENVIRONMENTAL PROTECTION

Opinion of KENNEDY, J.

modification under state common law that does not violate

due process, as owners may reasonably expect or antici

pate courts to make certain changes in property law. The

usual due process constraint is that courts cannot abandon

settled principles. See, e.g., Rogers v. Tennessee, 532 U. S.

451, 457 (2001) (citing Bouie v. City of Columbia, 378 U. S.

347, 354 (1964)); Apfel, 524 U. S., at 548–549 (opinion of

KENNEDY, J.); see also Perry, supra, at 601; Roth, supra,

at 577.

But if the state court were deemed to be exercising the

power to take property, that constraint would be removed.

Because the State would be bound to pay owners for tak

ings caused by a judicial decision, it is conceivable that

some judges might decide that enacting a sweeping new

rule to adjust the rights of property owners in the context

of changing social needs is a good idea. Knowing that the

resulting ruling would be a taking, the courts could go

ahead with their project, free from constraints that would

otherwise confine their power. The resulting judgment as

between the property owners likely could not be set aside

by some later enactment. See Plaut v. Spendthrift Farm,

Inc., 514 U. S. 211, 217 (1995) (leaving open whether

legislation reopening final judgments violates Due Process

Clause). And if the litigation were a class action to decide,

for instance, whether there are public rights of access that

diminish the rights of private ownership, a State might

find itself obligated to pay a substantial judgment for the

judicial ruling. Even if the legislature were to subse

quently rescind the judicial decision by statute, the State

would still have to pay just compensation for the tempo

rary taking that occurred from the time of the judicial

decision to the time of the statutory fix. See First English,

482 U. S., at 321.

The idea, then, that a judicial takings doctrine would

constrain judges might just well have the opposite effect.

It would give judges new power and new assurance that

Cite as: 560 U. S. ____ (2010) 7

Opinion of KENNEDY, J.

changes in property rights that are beneficial, or thought

to be so, are fair and proper because just compensation

will be paid. The judiciary historically has not had the

right or responsibility to say what property should or

should not be taken.

Indeed, it is unclear whether the Takings Clause was

understood, as a historical matter, to apply to judicial

decisions. The Framers most likely viewed this Clause as

applying only to physical appropriation pursuant to the

power of eminent domain. See Lucas v. South Carolina

Coastal Council, 505 U. S. 1003, 1028, n. 15 (1992). And it

appears these physical appropriations were traditionally

made by legislatures. See 3 J. Story, Commentaries on

the Constitution of the United States §1784, p. 661 (1833).

Courts, on the other hand, lacked the power of eminent

domain. See 1 W. Blackstone, Commentaries 135 (W.

Lewis ed. 1897). The Court’s Takings Clause jurispru

dence has expanded beyond the Framers’ understanding,

as it now applies to certain regulations that are not physi

cal appropriations. See Lucas, supra, at 1014 (citing

Mahon, 260 U. S. 393). But the Court should consider

with care the decision to extend the Takings Clause in

a manner that might be inconsistent with historical

practice.

There are two additional practical considerations that

the Court would need to address before recognizing judi

cial takings. First, it may be unclear in certain situations

how a party should properly raise a judicial takings claim.

“[I]t is important to separate out two judicial actions—the

decision to change current property rules in a way that

would constitute a taking, and the decision to require

compensation.” Thompson, Judicial Takings, 76 Va.

L. Rev. 1449, 1515 (1990). In some contexts, these issues

could arise separately. For instance, assume that a state

court opinion explicitly holds that it is changing state

property law, or that it asserts that is not changing the

8 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-

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Opinion of KENNEDY, J.

law but there is no “fair or substantial basis” for this

statement. Broad River, 281 U. S., at 540. (Most of these

cases may arise in the latter posture, like inverse condem

nation claims where the State says it is not taking prop

erty and pays no compensation.) Call this Case A. The

only issue in Case A was determining the substance of

state property law. It is doubtful that parties would raise

a judicial takings claim on appeal, or in a petition for a

writ of certiorari, in Case A, as the issue would not have

been litigated below. Rather, the party may file a sepa

rate lawsuit—Case B—arguing that a taking occurred in

light of the change in property law made by Case A. After

all, until the state court in Case A changes the law, the

party will not know if his or her property rights will have

been eliminated. So res judicata probably would not bar

the party from litigating the takings issue in Case B.

Second, it is unclear what remedy a reviewing court

could enter after finding a judicial taking. It appears

under our precedents that a party who suffers a taking is

only entitled to damages, not equitable relief: The Court

has said that “[e]quitable relief is not available to enjoin

an alleged taking of private property for a public use . . .

when a suit for compensation can be brought against the

sovereign subsequent to the taking,” Ruckelshaus v. Mon

santo Co., 467 U. S. 986, 1016 (1984), and the Court sub

sequently held that the Takings Clause requires the avail

ability of a suit for compensation against the States, First

English, supra, at 321–322. It makes perfect sense that

the remedy for a Takings Clause violation is only dam

ages, as the Clause “does not proscribe the taking of prop

erty; it proscribes taking without just compensation.”

Williamson County Regional Planning Comm’n v. Hamil

ton Bank of Johnson City, 473 U. S. 172, 194 (1985).

It is thus questionable whether reviewing courts could

invalidate judicial decisions deemed to be judicial takings;

they may only be able to order just compensation. In the

Cite as: 560 U. S. ____ (2010) 9

Opinion of KENNEDY, J.

posture discussed above where Case A changes the law

and Case B addresses whether that change is a taking, it

is not clear how the Court, in Case B, could invalidate the

holding of Case A. If a single case were to properly ad

dress both a state court’s change in the law and whether

the change was a taking, the Court might be able to give

the state court a choice on how to proceed if there were a

judicial taking. The Court might be able to remand and

let the state court determine whether it wants to insist on

changing its property law and paying just compensation or

to rescind its holding that changed the law. Cf. First

English, 482 U. S., at 321 (“Once a court determines that a

taking has occurred, the government retains the whole

range of options already available—amendment of the

regulation, withdrawal of the invalidated regulation, or

exercise of eminent domain”). But that decision would

rest with the state court, not this Court; so the state court

could still force the State to pay just compensation. And

even if the state court decided to rescind its decision that

changed the law, a temporary taking would have occurred

in the interim. See ibid.

These difficult issues are some of the reasons why the

Court should not reach beyond the necessities of the case

to recognize a judicial takings doctrine. It is not wise,

from an institutional standpoint, to reach out and decide

questions that have not been discussed at much length by

courts and commentators. This Court’s dicta in William

son County, supra, at 194–197, regarding when regulatory

takings claims become ripe, explains why federal courts

have not been able to provide much analysis on the issue

of judicial takings. See San Remo Hotel, L. P. v. City and

County of San Francisco, 545 U. S. 323, 351 (2005)

(Rehnquist, C. J., concurring in judgment) (“Williamson

County’s state-litigation rule has created some real

anomalies, justifying our revisiting the issue”). Until

Williamson County is reconsidered, litigants will have to

10 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-

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Opinion of KENNEDY, J.

press most of their judicial takings claims before state

courts, which are “presumptively competent . . . to adjudi

cate claims arising under the laws of the United States.”

Tafflin v. Levitt, 493 U. S. 455, 458 (1990). If and when

future cases show that the usual principles, including

constitutional principles that constrain the judiciary like

due process, are somehow inadequate to protect property

owners, then the question whether a judicial decision can

effect a taking would be properly presented. In the mean

time, it seems appropriate to recognize that the substan

tial power to decide whose property to take and when to

take it should be conceived of as a power vested in the

political branches and subject to political control.

Cite as: 560 U. S. ____ (2010) 1

Opinion of BREYER, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–1151

_________________

STOP THE BEACH RENOURISHMENT, INC.,

PETITIONER v. FLORIDA DEPARTMENT OF

ENVIRONMENTAL PROTECTION ET AL.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

FLORIDA

[June 17, 2010]

JUSTICE BREYER, with whom JUSTICE GINSBURG joins,

concurring in part and concurring in the judgment.

I agree that no unconstitutional taking of property

occurred in this case, and I therefore join Parts I, IV, and

V of today’s opinion. I cannot join Parts II and III, how

ever, for in those Parts the plurality unnecessarily ad

dresses questions of constitutional law that are better left

for another day.

In Part II of its opinion, see ante, at 7–10, the plurality

concludes that courts, including federal courts, may review

the private property law decisions of state courts to de

termine whether the decisions unconstitutionally take

“private property” for “public use without just compensa

tion.” U. S. Const., Amdt. 5. And in doing so it finds

“irrelevant” that the “particular state actor” that takes

private property (or unconstitutionally redefines state

property law) is the judicial branch, rather than the ex

ecutive or legislative branch. Ante, at 10; cf. Hughes v.

Washington, 389 U. S. 290, 296–298 (1967) (Stewart, J.,

concurring).

In Part III, the plurality determines that it is “not obvi

ously appropriate” to apply this Court’s “ ‘fair and substan

tial basis’ ” test, familiar from our adequate and independ

ent state ground jurisprudence, when evaluating whether

2 STOP THE BEACH RENOURISHMENT, INC. v. FLOR-

IDA DEPT. OF ENVIRONMENTAL PROTECTION

Opinion of BREYER, J.

a state-court property decision enacts an unconstitutional

taking. Ante, at 21. The plurality further concludes that a

state-court decision violates the Takings Clause not when

the decision is “unpredictab[le]” on the basis of prior law,

but rather when the decision takes private property rights

that are “established.” Ante, at 23–24. And finally, it

concludes that all those affected by a state-court property

law decision can raise a takings claim in federal court, but

for the losing party in the initial state-court proceeding,

who can only raise her claim (possibly for the first time) in

a petition for a writ of certiorari here. Ante, at 23.

I do not claim that all of these conclusions are unsound.

I do not know. But I do know that, if we were to express

our views on these questions, we would invite a host of

federal takings claims without the mature consideration of

potential procedural or substantive legal principles that

might limit federal interference in matters that are pri

marily the subject of state law. Property owners litigate

many thousands of cases involving state property law in

state courts each year. Each state-court property decision

may further affect numerous nonparty property owners as

well. Losing parties in many state-court cases may well

believe that erroneous judicial decisions have deprived

them of property rights they previously held and may

consequently bring federal takings claims. And a glance

at Part IV makes clear that such cases can involve state

property law issues of considerable complexity. Hence, the

approach the plurality would take today threatens to open

the federal court doors to constitutional review of many,

perhaps large numbers of, state-law cases in an area of

law familiar to state, but not federal, judges. And the

failure of that approach to set forth procedural limitations

or canons of deference would create the distinct possibility

that federal judges would play a major role in the shaping

of a matter of significant state interest—state property

law.

Cite as: 560 U. S. ____ (2010) 3

Opinion of BREYER, J.

The plurality criticizes me for my cautious approach,

and states that I “cannot decide that petitioner’s claim

fails without first deciding what a valid claim would con

sist of.” Ante, at 12. But, of course, courts frequently find

it possible to resolve cases—even those raising constitu

tional questions—without specifying the precise standard

under which a party wins or loses. See, e.g., Smith v.

Spisak, 558 U. S. ___, ___ (2010) (slip op., at 16) (“With or

without such deference, our conclusion is the same”);

Quilloin v. Walcott, 434 U. S. 246, 256 (1978) (rejecting an

equal protection claim “[u]nder any standard of review”);

Mercer v. Theriot, 377 U. S. 152, 156 (1964) (per curiam)

(finding evidence sufficient to support a verdict “under any

standard”). That is simply what I would do here.

In the past, Members of this Court have warned us that,

when faced with difficult constitutional questions, we

should “confine ourselves to deciding only what is neces

sary to the disposition of the immediate case.” Whitehouse

v. Illinois Central R. Co., 349 U. S. 366, 373 (1955); see

also Lyng v. Northwest Indian Cemetery Protective Assn.,

485 U. S. 439, 445 (1988) (“A fundamental and longstand

ing principle of judicial restraint requires that courts

avoid reaching constitutional questions in advance of the

necessity of deciding them”); Ashwander v. TVA, 297 U. S.

288, 346–347 (1936) (Brandeis, J., concurring) (“The Court

will not anticipate a question of constitutional law in

advance of the necessity of deciding it. It is not the habit

of the Court to decide questions of a constitutional nature

unless absolutely necessary to a decision of the case”

(citations and internal quotation marks omitted)). I heed

this advice here. There is no need now to decide more

than what the Court decides in Parts IV and V, namely,

that the Florida Supreme Court’s decision in this case did

not amount to a “judicial taking.”