Amicus Curiae Brief — McQueen v. South Carolina Department of Health & Environmental Control

No. 03 -0159

In the

Supreme Court of the United States

October Term, 2003

SAM B. MCQUEEN,

Petitioner,

We

SOUTH CAROLINA DEPARTMENT OF HEALTH &

ENVIRONMENTAL CONTROL, OFFICE OF OCEAN & COASTAL

RESOURCE MANAGEMENT (f/k/a SOUTH CAROLINA

COASTAL COUNCIL),

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of South Carolina r

BRIEF OF AMICI CURIE ANTHONY PALAZZOLO, NEW

ENGLAND LEGAL FOUNDATION, THE AMERICAN FARM

BUREAU FEDERATION, AND THE SOUTH CAROLINA FARM

BUREAU FEDERATION IN SUPPORT OF PETITIONER

Counsel for Amici Curize

MICHAEL E. MALAMUT

Counsel of Record

New England Legal Foundation

150 Lincoln Street

Boston, MA 02111

Tel.: (617) 695-3660

Fax: (617) 695-3656

BERT RRENA te0 W Bc RE AORET

FG ERIE AIR ELA REGIS Do ILE LS SEL

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Ss rie i ea Mae SSN BON IN OS

QUESTIONS PRESENTED

Amici Curiz Anthony Palazzolo, the American

Farm Bureau, and the South Carolina Farm Bureau

adopt the question presented by Petitioner Sam B.

McQueen:

Whether a court may deny compensation

for a categorical taking by invoking a new

and expansive conception of the public

trust doctrine, thereby disregarding the

limits placed by this Court’s regulatory

takings decisions on the definition of a

background principle of law.

TABLE OF CONTENTS

CATIONS FRI os visicsivstirniessht en a eenaas i

SOE OF CAITR ives sitnsncctsscetccssnimieanmaaanaiiessies il

TAREE CE TIT osninscincdcvscemkoeineoreeea ill

INTEREST OF AMICUS CURRIE iis vcissvncsnvstavancevenessecetssvevesees 1

SUMMARY OF ARGUMENT............0ccececeseeeeees 7 ee 6

TREN ss stsisivcnistorercumvmisasanouatntniaenanaiealenanei tj |

I. The decision below constitutes an |

attempted evasion of federal law |

because the South Carolina Supreme

Court engaged in several procedural

irregularities in order to reach its

result-oriented conclusion ........................... ci

II. The South Carolina Supreme Court’s

significant expansion of the public

trust doctrine invites review because

the court’s novel substantive

interpretation of the public trust

doctrine contradicts traditional

South Carolina public trust

INNES Succi ssascdiensinttendc tnanceidtaiasthasamneiini anes 13

SEIN oisisinsvitnrenscetdiaiaveiditaniummdamieanintladi Aca. 18

TABLE OF AUTHORITIES

CASES

City of Folly Beach v. Atlantic House Properties, Inc.,

318 S.C. 450, 458 S.E.2d 426 (1995) ...12,15,1lo

Coburg Dairy, Inc. v. Lesser, 318 S.C. 510,

Be EE CEP ovsccecccvesroveseseccassesesesenes 16

Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) ..... 14

Grant v. South Carolina Coastal Council,

319 S.C. 348, 461 S.E.2d 388 (1995) ............. 10

Horry County v. Woodward, 282 S.C. 366,

318 S.E.2d 584 (Ct. App: 1984) ...................... 15

Howlett by Howlett v. Rose, 496 U.S. 356 (1990) ....... 14

Hughes v. Nelson, 303 S.C. 102,

399 S.E.2d 24 (Ct. App. 1990) .................0..06+. 12

Kaiser Aetna v. United States, 444 U.S. 164 (1979) ....17

Lite House, Inc. v. J.C. Roy Co., 309 S.C. 50,

419 $.B.26 617 (Ct. App. 1992) .........000000000000 10

Low Country Open Land Trust v. State, 347 S.C. 96,

$52 S.BE.2d 778 (Ct. App. 2001) .......00.0.0000. 12,15

Lucas v. South Carolina Coastal Council,

ER OF, BUM LED PAD vsccesccveccssessescennsceses 7,13,14

McQueen v. South Carolina Department of Health

& Envtl. Control, 533 U.S. 943 (2001) ............... 7

McQueen v. South Carolina Coastal Council,

340 S.C. 65, 530 S.E.2d 628 (2000)

FEE © scien scvaciicenwiieensctommaennuacsbeaanenind 8,9

McQueen v. South Carolina Coastal Council,

354 S.C. 142, 580 S.E.2d 116 (2003)

(“McQueen IP) ...... seseusneeeeseseseasees 8,9,10,12,14,16

Palazzolo v. Rhode Island, 533 U.S. 606 (2001) ....7,8,9,

13,14

Phillips v. Washington Legal Foundation,

ee OE Fe Ce ectatinttreciencsnencotonseencnnenesnces 8

Satcher v. Satcher, 351 S.C. 477, 570 S.E.2d 535

OR. FA FREE 90 sian neecimmanaeesied 11

Shands v. Triplet, 26 S.C. Eq.

(S Rich. Eq.) 76 (1652) ............ccsssssssssserereees 15

Shively v. Bowlby, 152 U.S. 1 (1894) ........ eee 16

Sierra Club v. Kiawah Resort Assocs., 318 S.C. 119,

Se a Pe CRE hist peinersesvonsesnsicscevnntannes 17

South Carolina Department of Natural Resources v

Town of McClellanville, 345 S.C. 617,

BED BT FO CED asccsncscssessncsivescacencsnsssess 11

Spigener v. Cooner, 42. S.C.L. (8 Rich.) 301 (1855) ..... 15

State v. Fain, 273 S.C. 748, 259 S.E.2d 606 (1979) ...11

State v. Hardee, 259 S.C. 535,

193 S.B.2d 497 (IDTA) ...0.cccescccseocenssvees 11,12,16

iv

State ex rel. McLeod v. Sloan Constr. Co., 284 S.C. 491,

328 S.E.2d 84 (Ct. App. 1985) ....... 15

CONSTITUTION AND STATUTES

Pe SINUS TF nentsiccnincndiemnbaisacadaeee center 14,18

Notes SO GIN. FIBY ncinstasscavsensassvesnoncvesuecavands 14,18

eRe Sk Sy PP TED ccostniscunobsnonsdaaueedecmateaanieanes 11

RULES

Ss aris Ws RR niciniiiss Siasccinecacctumelinenteeliaiaanine lace D ee 7

REGULATIONS

S.C. Dept. of Health & Envtl. Control,

SECS Ge Ee Sittin nineteen 11

OTHER AUTHORITIES

Joseph K. Angell, Treatise on the Right of Property

Oe Fale TO SD iin enscicanccnderincussamoentcxstatons 15

Matthew Hale, De Jure Maris, C. 4 oo... ec ceccccecccccccccceces 15

16B Charles Alan Wright et al., Federal Practice &

Procedure § 4021 (1996 & Supp. 2003) ........... 14

16B Charles Alan Wright et al., Federal Practice &

Procedure § 4029 (1996 & Supp. 2003) ........... 14

18B Charles Alan Wright et al., Federal Practice

& Procedure § 4478.3 (2003) .............cccceecceeeeeee 8

Vv

Lloyd R. Cohen, The Public Trust Doctrine:

An Economic Perspective,

29 CAL. W. L. REV. ZaP (IGG) occcsnseccscesecsecneses 17

Richard J. Lazarus, Changing Conceptions of

Property and Sovereignty in Natural

Resources: Questioning the Public Trust

Doctrine, 71 IOWA L. REV. 631 (1986) ............... 17

No. 03 -0159

In the

Supreme Court of the United States

October Term, 2003

SAM B. MCQUEEN,

Petitioner,

V.

SOUTH CAROLINA DEPARTMENT OF HEALTH &

ENVIRONMENTAL CONTROL, OFFICE OF OCEAN & COASTAL

RESOURCE MANAGEMENT (1/7 k/a SOUTH CAROLINA

COASTAL COUNCIL),

Respondent.

On Petition for Writ of Certiorari to the

Suprem< Court of South Carolina

BRIEF OF AMICi CURLZ ANTHONY PALAZZOLO, NEW

ENGLAND LEGAL FOUNDATION, THE AMERICAN Farm

BUREAU FEDERATION, AND THE SOUTH CAROLINA FARM

BUREAU FEDERATION IN SUPPORT OF PETITIONER

INTEREST OF AMICI CURL!

Amici seek to bring to the Court’s attention their

views, and the views of the Supporters the Association

Amict—New England Legal Foundation (“NELF”’), the

American Farm Bureau Federation (“AFBF”), and the

1 Pursuant to Supreme Court Rule 37.6, counsel for amici

States that counsel for neither Petitioner nor Respondent authored

this brief in whole or in part and no person or entity other than amici

made a monetary contribution to the preparation or submission of

the brief. Pursuant to Supreme Court Rule 37.2 (a), counsel for Amici

are filing this brief pursuant to a blanket consent of counsel for

Petitioner and Respondent filed with this Court on August 28, 2003.

South Carolina Farm Bureau Federation (“SCFBF”)—

concerning the effect of the public trust doctrine as a

background principle of state law on the takings clause

under the Fifth and Fourteenth Amendments to the

United States Constitution.

Amicus Curize Anthony Palazzolo (“Palazzolo”) owns

approximately 18 acres of wetland property, subdivided

into 74 building lots, in Westerly, Rhode Island. Rhode

Island state coastal wetlands regulations similar to those

at issue in this case have severely restricted Mr.

Palazzolo’s use of his property. Mr. Palazzolo challenged

these Rhode Island wetlands regulations as a regulatory

taking in litigation that reached this Court in Palazzolo v.

Rhode Island, 533 U.S. 606 (2001). This Court

determined that the so-called “notice rule” should not bar

Mr. Palazzolo’s regulatory taking claim and remanded Mr.

Palazzolo’s case to the Rhode Island Supreme Court for

further proceedings to address the merits of his claims

under Penn Central Transportation Co. v. City of New York,

438 U.S. 104 (1978). 533 U.S. at 627-28, 630, 632.

Shortly thereafter, this Court granted the initial petition

for certiorari by Petitioner Sam B. McQueen (“McQueen”)

and remanded this case to the Supreme Court of South

Carolina for further consideration in light of Palazzolo.

McQueen v. South Carolina Department of Health & Envtl.

Control, 533 U.S. 943 (2001), vacating McQueen v. South

Carolina Coastal Council, 340 S.C. 65, 530 S.E.2d 628

(2000) (“McQueen I) (barring McQueen’s regulatory

takings claim on basis of notice rule).

Just as the South Carolina Supreme Court did in

this case, on remand in Mr. Palazzolo’s case the Rhode

Island Supreme Court ordered the parties to address the

applicability of the public trust doctrine to the wetlands

at issue, Palazzolo v. State ex rel. Tavares, 785 A.2d 561

(R.I. 2001). The Rhode Island Supreme Court in an

unpublished order then further remanded Mr. Palazzolo’s

2

case to the Rhode Island Superior Court for Washington

County for re-trial. Palazzolo v. State ex rel. Tavares, No.

98-333-A, order (R.I. June 24, 2002).2 The Rhode Island

Supreme Court’s remand order mandated that the trial

court “consider . . . the effect of the Public Trust Doctrine

. on [Mr. Palazzolo’s] reasonable investment-backed

expectations [under the doctrine of Penn Central]”;

“require that a complete survey of the Palazzolo property

be filed with the Court prior to any hearing [in order to]

establish, among other elements, the portion of the

Palazzolo marshlands that are below the high-water mark

of tidal effect [the historic public trust boundary]”; and

“consider the effect of the Public Trust Doctrine upon the

limitations of title originally acquired by Mr. Palazzolo

and his predecessor in title, Shore Gardens, Inc., in

accordance with the [background] principles [of state law]

enunciated in Lucas [v. South Carolina Coastal Council,

S05 U.S. 1003 (1992)].” Id. Mr. Palazzolo is concerned

that, unless the South Carolina Supreme Court’s novel

public trust position is reversed, the Rhode Island state

courts may similarly deny him compensation based on a

re-interpretation of public trust law that he could not

have foreseen when he invested in his property in 1959.

Amicus Curiz NELF is a non-profit, public interest

law firm, incorporated in Massachusetts in 1977. It is

headquartered in Boston. Its membership consists of

corporations, law firms, individuals, and others who

believe in NELF’s mission of promoting balanced

economic growth jor the United States and the New

England region, protecting the free enterprise system,

and defending economic rights. NELF’s more than 130

members and supporters include a cross-section of large

and small corporations from all parts of New England

and the United States. NELF’s members are affected by

2 The Rhode Island Supreme Court’s remand order is attached

hereto as Appendix A.

3

the real estate development climate in New England,

which depends, in part, upon the extent to which land-

use agencies respect property owners’ development

expectations. Furthermore, some of NELF’s members are

directly interested in real estate development because

they own, finance, develop, and manage real estate. For

those reasons, NELF’s members are concerned about the

issues presented this case.

NELF has regularly appeared in state and federal

courts, as party or counsel, in cases raising issues of

general economic significance to the New England and

national business communities. See, e.g., Green Tree Fin.

Corp. v. Bazzle, 123 S. Ct. 2402 (2003); EEOC v. Waffle

House, Inc., 534 U.S. 279 (2002); Palazzolo v. Rhode

Island, 533 U.S. 606 (2001); Crosby v. National Foreign

Trade Council, 530 U.S. 363 (2000); Estados Unidos

Mexicanos v. DeCoster, 229 F.3d 332 (1st Cir. 2000);

Bessette v. Auvco Fin. Servs., 230 F.3d 439 (1st Cir. 2000),

cert. denied, 532 U.S. 1048 (2001). NELF has submitted

briefs, as party or counsel, in several cases involving the

public trust doctrine to state supreme courts. See, e.g.,

Trio Algarvio, Inc. v. Department of Envtl. Protection, 440

Mass. 94, __ N.E.2d __ (2003); Providence & Worcester

R.R. v. Pine, 729 A.2d 202 (R.I. 1999); and. Greater

Providence Chamber of Commerce v. State of Rhode Island,

657 A.2d 1038 (R.I. 1995).

Amicus Curiz AFBF is a voluntary general farm

organization formed in 1919 and organized in 1920

under the General Not-For-Profit Corporation Act of the

State of Illinois. AFBF was founded to protect, promote,

and represent the business, economic, educational and

social interests of American farmers and ranchers. It has

member organizations in all 50 states and Puerto Rico

representing more that 5 million member families.

Pree rrr nnn nr ene eee ee

Amicus Curie SCFBF is a voluntary non-profit

membership association organized under the laws of the

State of South Carolina. It has its principal offices in

Columbia, South Carolina. SCFBF, individually and

through joint and collective efforts, seeks to promote,

protect and represent the economic, social and

educational interests of farmers in South Carolina.

: SCFBF is composed of 47 local chapters with a total

membership of more than 130,000 member families.

SCFBF is a member of the AFBF. |

Sam B. McQueen is a farmer member of the

Horry-Conway Chapter of SCFBF. Horry-Conway Farm

Bureau represents 3,801 member families.

AFBF and SCFBF farmer and rancher members

own or lease significant amounts of land on which they

depend for their livelihoods and on which all Americans

depend for high quality, affordable food, fiber and other

basic necessities. Because that land is subject to

increasingly onerous regulation from all levels of

government—such as the state wetlands regulation at

| issue in this case—AFBF and SCFBF members are vitally

interested in the legal rules establishing the availability

of compensation under the Takings Clause of the Fifth

Amendment when regulation goes too far. AFBF and

SCFBF and their members have a direct interest in the

outcome of this case and, therefore, are vitally interested

in the proper interpretation of the Just Compensation

Clause of the Fifth Amendment to the United States

Constitution. These concerns underlie AFBF’s

participation as an amicus in this Court in support of

landowners in takings cases such as Lucas v. South

Carolina Coastal Council, 505 U.S. 1003 (1992), Dolan v.

City of Tigard, 512 U.S. 374 (1994), Suitum v. Tahoe

Regional Planning Agency, 520 U.S. 725 (1997), City of

Monterey v. Del Monte Dunes, Ltd., 526 U.S. 687 (1999),

and Palazzolo v. Rhode Island, 533 U.S. 606 (2001), as

)

well as in cases concerning the permissible scope of

federal land use regulation such as Babbit v. Sweet Home

Chapter of Communities for a Great Oregon, 515 U.S. 687

(1995), and Solid Waste Agency of Northern Cook County

v. United States Army Corps of Engineers, 531 U.S. 159

(2001).

The South Carolina Supreme Court’s expansion of

the circumstances in which a state may effectively

dispossess an owner of his or her property without

paying compensation is therefore contrary to the

interests of Amici and the members of the Association

Amici. Amici Curize therefore believe that this brief will

provide an additional perspective to aid the Court in

determining whether to grant the petition for a writ of

certiorari of Petitioner McQueen.

SUMMARY OF ARGUMENT

The decision below in this case violates procedural

standards by ignoring the mandate of this Court on

remand, by basing its ruling on a defense that was not

presented to the trial court, and by resting on factual

assumptions not found in the record. The decision below

also expands traditional South Carolina public trust

doctrine beyond its traditional confines, contrary long-

adhered to background principles of state law, by

allowing its use for purposes other than navigation, by

applying the doctrine to wetlands above the mean high

tide line, and by applying the doctrine to private property

inundated by a single catastrophic event, Hurricane

Hugo.

ARGUMENT

Z. The decision below constitutes an attempted

evasion of federal law because the South

Carolina Supreme Court engaged in several

procedural irregularities in order to reach its

result-oriented conclusion.

This case raises a matter of national concern that

affects owners of wetland property throughout the

country: the extent to which the federal Constitution

protects property owners when states reformulate their

traditional public trust doctrine to cover additional land,

for additional purposes, with additional use restrictions.

This Court should therefore grant certiorariin this case

pursuant to Supreme Court Rule 10 (c) because the

South Carolina Supreme Court has “decided an

important federal question in a way that conflicts with

relevant decisions of this Court,” including this Court’s

previous remand order in this case, McQueen v. South

Carolina Department of Health & Envtl. Control, 533 U.S.

943 (2001), and this Court’s jurisprudence defining

background principles of state law in Palazzolo v. Rhode

Island, 533 U.S. 606, 630 (2001), and Lucas v. South

Carolina Coastal Council, 505 U.S. 1003, 1029 (1992).

Since Lucas, states have increasingly relied on

background legal principles, in particular the public trust

doctrine, as defenses to regulatory takings. This case

squarely addresses how much beyond long-standing

precedents a state can stretch its traditional common law

in order to defeat federally protected property rights by

invoking “background principles of state law.” The South

Carolina Supreme Court’s expansion of the public trust

beyond its precedential moorings in this case goes too

far. As this Court has instructed, “at least as to

confiscatory regulations (as opposed to those regulating

7

the use of property), a State may not sidestep the

Takings Clause by disavowing traditional property

interests long recognized under state law.” Phillips v.

Washington Legal Foundation, 524 U.S. 156, 167 (1998).

The South Carolina Supreme Court’s considerable

departures from procedural and substantive precedents

illustrate the degree to which it was willing to go in

abrogating traditional legal principles to deprive

McQueen of compensation for what the court

acknowledged was “a total taking.” McQueen v. South

Carolina Coastal Council, 354 S.C. 142, 148, 580 S.E.2d

116, 119 (2003) (“McQueen Ir).

Amici contend that the South Carolina Supreme

Court arrived at the decision on remand based on at

least three significant procedural irregularities that alone

warrant examination of the decision by this Court as an

attempt to evade federal takings law. First, as discussed

in detail by Petitioner, the court below ignored this

Court’s mandate and failed tp address the effect of the

Palazzolo decision on its earlier decision in McQueen I,

vacated and remanded sub nom. McQueen v. South

Carolina Dept. of Health & Envtl. Control, 533 U.S. 943

(2001). See Petition at 9-11. Most striking in this case is

the South Carolina Supreme Court’s rejection of

compensation for McQueen on the basis of the public

trust doctrine as a purported background principle of

state law without reviewing the extensive discussion in

Palazzolo of the meaning of background principles of

state law. Compare McQueen II, 354 S.C. at 148-49, 580

S.E.2d at 119, with Palazzolo, 533 U.S. at 626, 629-30.

See 18B Charles Alan Wright et al., Federal Practice &

Procedure § 4478.3 (2003) (lower court “does violate the

mandate ... [if it] fail[s] to decide questions that the

court of appeals has directed the lower court to decide”).

The second significant procedural irregularity is

that the public trust doctrine—the basis of the South

8

Carolina Supreme Court’s decision on remand—was an

issue newly introduced to the case, and rejected on that

ground, when the South Carolina Supreme Court first

considered McQueen’s case. McQueen IJ, 340 S.C. at 70

n.2, 530 S.E.2d at 631 n.2. The administrative decisions

to deny McQueen the use of his property were based on

state wetlands regulations and did not take the public

trust into account. Id., 340 S.C. at 68, 530 S.E.2d at 630

(property located within “tidelands critical area”).

At the trial level, the State did not raise the public

trust as a defense to the regulatory taking and the trial

court therefore did not make any factual determination

about the extent of McQueen’s property that was

encumbered by the public trust. See Petition Appendix E

at 41a-54a. The South Carolina Supreme Court, in its

first opinion, dismissed public trust arguments made by

amici “[bjecause these arguments were not made to the

lower courts ....” McQueen IJ, 340 S.C. at 70 n.2, 530

S.E.2d at 631 n.2. The South Carolina Supreme Court

initially decided to deny McQueen compensation for the

regulatory prohibition on using his property on the

“notice rule” because McQueen did not request

development permission earlier in the face of growing

regulatory restrictions. McQueen J, 340 S.C. at 73-76,

930 S.E.2d at 633-35.

Nevertheless, on remand from this Court for

consideration in light of Palazzolo, the South Carolina

Supreme Court framed the issue as “Do background

principles within South Carolina property law absolve the

State from compensating McQueen?” McQueen I, 354

S.C. at 148, 580 S.E.2d at 119. The only background

principle that the South Carolina Supreme Court

considered was the public trust doctrine, id., 354 S.C. at

149-50, 580 S.E.2d at 119-20, despite the court’s earlier

rejection of the doctrine for the State’s failure to raise it

below. The South Carolina Supreme Court’s raising of the

9

public trust doctrine as a defense ex mero motu despite

the failure of the State to raise it below flies in the face of

long-standing rules of procedure. Grant v. South Carolina

Coastal Council, 319 S.C. 348, 356, 461 S.E.2d 388, 392

(1995) (appellate court will not hear issues not raised or

preserved in lower court proceeding); Lite House, Inc. v.

J.C. Roy Co., 309 S.C. 50, 55, 419 S.E.2d 817, 820 (Ct.

App. 1992) (“Because the trial judge did not address the

issue ... and [the party raising the issue] made no

motion asking him to do so.. ., we also will not address

this issue.”). See Petition at 17 n.11.

The third major procedural irregularity is that the

South Carolina Supreme Court based its decision to deny

McQueen compensation on the public trust doctrine

without any findings of fact below that McQueen’s

property was subject to the public trust. On remand, the

court below relied on the following statements,

apparently derived from the administrative record, to find

that the public trust applied to McQueen’s land:

At the time of the hearing, the majority of

both lots had reverted to tidelands or

critical area saltwater wetlands. ... The

53rd Avenue lot is inundated regularly by

tidal flow all the way up to the street. The

48th Avenue lot has less tidal flow but

contains more critical area wetland

vegetation.

McQueen I, 354 S.C. at 146, 580 S.E.2d at 118

(emphasis added). These determinations relate to the

~

3 South Carolina statute defines “tidelands’” to include not only

land below mean high tide, but also considerable property above

mean high tide: all “coastal wetlands, mudflats, and similar areas

that are contiguous or adjacent to coastal waters and are an integral

part of the estuarine systems involved,” regardless of the effect of the

tide. S.C. St. § 48-39-10 (G). As used in current South Carolina

coastal regulations, “tidal” land includes not only property subject to

10

administrative jurisdiction of the regulatory agency. None

of these purported factual determinations relate to the

critical determination for public trust purposes of the

extent of inundation of McQueen’s property at mean high

tide. State v. Fain, 273 S.C. 748, 752, 259 S.E.2d 606,

608 (1979); State v. Hardee, 259 S.C. 535, 539, 193

S.E.2d 497, 499 (1972). In fact, quite the opposite, as it

appears that the 48th Avenue lot is not significantly

affected by the tide.

Noi surprisingly, because the public trust was not

an issue at the trial court, the extent of the public trust

was not tried and did not become a part of the record and

the trial court made no fact findings on the extent of the

public trust. See Petition Appendix E at 4la—54a.

Moreover, even the South Carolina Supreme Court could

have done so as an equitable matter, it did not attempt to

make findings from the sparse record as to the extent of

McQueen’s property covered at mean high tide. See South

Carolina Department of Natural Resources v. Town of

McClellanville, 345 S.C. 617, 622, 550 S.E.2d 299, 302

(2001) (“[A] Master's findings, concurred with by the

circuit court, will not be disturbed on appeal unless

without evidentiary support.”); Satcher v. Satcher, 351 |

S.C. 477, 482, 570 S.E.2d 535, 538 (Ct. App. 2002) (ina |

South Carolina equity action heard by a master, while

appellate court may make findings of fact from the.

record, “we are not required to disregard the findings of |

the trial judge who saw and heard the witnesses and was

tidal inundation at mean high tide, but all adjacent wetlands that

“are an integral part of the estuarine systems.” S.C. Dept. of Health &

Envtl. Control, R-30-1 (D) (49), available at http: / /www.scdhec.gov/

ocrm/HTML/regs2002.html. Therefore the reference to much of the

lots as “tideland” is irrelevant to determining the extent of the public

trust. Similarly, the reference to the 53rd Avenue lot as “inundated

regularly by tidal flow all the way up to the street” is irrelevant

because regular may mean only at the twice monthly extremely high

spring high tides.

1]

1

in a better position to judge their credibility.”); Low

Country Open Land Trust v. State, 347 S.C. 96, 101-02,

552 S.E.2d 778, 781 (Ct. App. 2001) (determination of

title in tidelands is a legal matter, appellate courts defer

to master as factfinder).

McQueen had no notice that he might need to

introduce evidence of the inapplicability of the public

trust to his property. Had he been apprised that the

State was raising a public trust defense, under South

Carolina law, he could have attempted to put forward

evidence that his title extended below been high water by

virtue of the original grant. See Hardee, 259 S.C. at 539,

193 S.E.2d at 499 (“in the absence of more specific

language,” private title presumed to extend only to mean

high tide line); Low Country Open Land Trust, 347 S.C. at

102-03, 552 S.E.2d at 782-83 (property owner overcame

presumption to establish title below mean high tide).4

McQueen: had no opportunity to rebur the

presumptions of title to land below mean high tide and to

navigability of the canal because they were not issues in

the case until the South Carolina Supreme Court made

them issues on remand from this Court. Until then,

McQueen was in the same position as the owner of the

Atlantic House, “where it was uncontested [that the

property owner] was ‘owner of record’ of land below high

water mark.” McQueen I, 354 S.C. at 149 n.6, 580 S.E.2d

at 119 n.6, citing City of Folly Beach v. Atlantic House

Properties, Inc., 318 S.C. 450, 458 S.E.2d 426 (1995).

Nevertheless, the South Carolina Supreme Court applied

4 It might well be that the prior owners of the subdivision in

which McQueen’s lots are located may have owned the entire

property, including the canal beds, in fee. It may well be that the tidal

canal abutting McQueen’s property was not navigable in fact, which

would have exempted it from the public trust under South Carolina

law. See McQueen I], 354 S.C. at 150 n.7, 580 at 120 n.7; Hughes v.

Nelson, 303 S.C. 102, 104, 399 S.E.2d 24, 25 (Ct. App. 1990).

12

the presumptions of title and navigability against

McQueen on remand.

In view of the procedural irregularities in the

opinion below—which ignores this Court’s mandate, is

based on an issue not raised below, and relies on facts

not in evidence—the South Carolina Supreme Court’s

decision is severely flawed. It therefore well warrants

review by this Court to vindicate McQueen’s federally

protected property rights.

Il. The South Carolina Supreme Court’s

significant expansion of the public trust

doctrine invites review because the court’s

novel substantive interpretation of the public

trust doctrine contradicts traditional South

Carolina public trust limitations.

Not only is the decision below procedurally flawed,

it also effects a major change in South Carolina property

law by expanding the public trust in three significant

ways—ignoring the traditional limitation on the public

trust of the doctrine of avulsion, expanding public trust

coverage to marshland above mean high tide, and

expanding permissible public trust purposes in artificial

navigable streams beyond navigation. This constitutes a

perversion of this Court’s guidance on the meaning of

background principles of state law in Palazzolo and

Lucas. For the State to prohibit a proposed development

as a violation of a background principle, the principle

must be generally applicable, long-standing, and based

on the state’s common-law tradition.5 In this case, all

5 “It suffices to say that a regulation that otherwise would be

unconstitutional absent compensation is not transformed into a

background principle of the State’s law by mere virtue of the passage

of title. .. . {OJur description of the concept in Lucas... is explained

in terms of those common, shared understandings of permissible

limitations derived from a State’s legal tradition.” Palazzolo v. Rhode

- Island, 533 U.S. at 630 (emphasis added). “Any limitation so severe

13

three of these expansions of the public trust are major

departures from historic precedents.®

Historically, the rapid inundation of property by

tidal waters is treated as an avulsion (a sudden change in

a water body’s limits), meaning that property boundaries

remain the same as before the change. By common law,

the property owner may reclaim such inundated land. “If

cannot be newly legislated or decreed (without compensation), but

must inhere in the title itself, in the restrictions that background

principles of the State’s law of property and nuisance already place

upon land ownership.” Lucas, 505 U.S. at 1029 (emphasis added).

The decision below, if allowed to stand, would effectively permit states

to change their public trust doctrines retroactively to prohibit the use

of property coveted by the government in its natural condition

without compensation and without allowing a federal remedy. See

Eastern Enterprises v. Apfel, 524 U.S. 498, 532 (1998) (O’Connor, J.,

plurality opinion) (retroactive application of novel legal doctrines

discouraged).

6 South Carolina could not argue that the South Carolina

Supreme Court’s novel expansive interpretation of the public trust

doctrine was permissible as an adequate and independent state

ground for decision, even if fails to meet the requirements of a

background principle of state law under Lucas and Palazzolo. This

Court has held on numerous occasions that a ruling that purports to

rest on an adequate and independent state ground invites review

when the state decision has the effect of evading a federal right.

Howlett by Howlett v. Rose, 496 U.S. 356, 366 (1990) (“The adequacy

of the state law ground to support a judgment precluding litigation of

the federal claim is itself a federal question which we review de

novo.”). See 16B Charles Alan Wright et al., Federal Practice &

Procedure § 4021 at 299, § 4029 (federal courts may “disregard...

any state ground that has so little support in either reason or

precedent as to be ‘in effect’ an evasion of federal law”) (1996 & Supp.

2003). In this case McQueen’s property rights are protected by the

Due Process and Takings Clauses of the Fifth Amendment of the

federal Constitution, as applied to the states by the Fourteenth

Amendment. The numerous procedural irregularities and departures

from precedent discussed by Amici suggest that the South Carolina

Supreme Court in McQueen I was attempting to evade the recognition

of McQueen’s federally protected property rights.

14

acai

a subject hath land adjoining the sea, and the violence of

the sea swallow it up... if... it be by art or industry

regained, the subject does not lose his propriety ...

though the inundation continue forty years.” Matthew

Hale, De Jure Maris, c. 4 at 381. See id. at c. 4 at 383;

Joseph K. Angell, Treatise on the Right of Property in Tide

Waters 76-79 (1826) (“[I]f an individual’s land has been

inundated, he may regain it by any work which will shut

out and exclude the water.”).? South Carolina recognizes

the doctrine of avulsion, at least in regard to shifting

stream beds. Spigener v. Cooner, 42 S.C.L. (8 Rich.) 301

(1855). Moreover, “the English common law ordinarily is

presumed to govern if there is no South Carolina

authority to the contrary.” State ex rel. McLeod v. Sloan

Constr. Co., 284 S.C. 491, 496, 328 S.E.2d 84, 87 (Ct.

App. 1985) (citation omitted). See Low Country Open Land

Trust v. State, 347 S.C. at 109-10, 552 S.E.2d at 785-86.

The record on appeal (“R.”) below discloses that

McQueen’s property suffered little erosion until

Hurricane Hugo in 1989 and, during that hurricane, the

property eroded significantly. R. at 117, 212-13, 335.

This is a classic case for the application of the doctrine of

avulsion, which would have allowed McQueen to use “art

or industry” to reclaim the land lost to the hurricane, in

accordance with applicable English common law and

South Carolina precedents. Thus, this case is similar to

City of Folly Beach, where a restaurant built over the

ocean was destroyed by Hurricane Hugo and the owners

were entitled to compensation for the taking of their

7 Numerous South Carolina cases cite Hale and Angell as

authorities on the public trust. See, e.g., Spigener v. Cooner, 42 S.C.L.

(8 Rich.) 301 (1855); Shands v. Triplet, 26 S.C. Eq. (5 Rich. Eq.) 76

(1852); Horry County v. Woodward, 282 £ C. 396, 372-74, 318 S.E.2d

584, 587-89 (Ct. App. 1984) (quoting same portion of Hale with

different omissions); State ex rel. McLeod v. Sloan Constr. Co., 284

S.C. 491, 496, 328 S.E.2d 84, 86-87(Ct. App. 1985).

15

property by eminent domain because they had the right

to rebuild. City of Folly Beach, 318 S.C. at 451, 458

S.E.2d at 426, cifed in McQueen I, 354 S.C. at 149 n.6,

150 n.8, 580 S.E.2d at 119 n.6, 120 n.8. Nevertheless,

the South Carolina Supreme Court in this case chose te

disregard avulsion as a qualification of the public trust

doctrine and its own recent precedent in City of Folly

Beach to deny McQueen compensation.

In another departure from traditional public trust

doctrine, the South Carolina Supreme Court blithely

applied the public trust to property above the mean high

tide line that falls within the statutory jurisdiction of the

Department of Health and Environmental Control

because it is wetland and therefore meets the expansive

statutory definition of “tideland.” See supra noite 3.

“[W]etlands created by the encroachment of navigable

tidal water belong to the State.” McQueen IJ, 354 S.C. at

150, 580 S.E.2d at 120.8 This proposition, which

confounds wetlands and tidelands, constitutes an

unprecedented expansion of the public trust, which

historically applied in South Carolina (as in most states)

to coastal property only below the mean high tide line.

Hardee, 259 S.C. at 540-41, 193 S.E.2d at 500. See

Shively v. Bowlby, 152 U.S. 1, 26 (1894) (while public

trust doctrine is unique in each state, broad outlines of

public trust doctrine similar in all states). Much, if not

most, ccastal wetland property is above the mean high

tide line. While wetlands above the mean high tide line

8 The case cited by the South Carolina Supreme Court as

precedent for expanding the public trust to all coastal wetlands,

McQueen II, 354 S.C. at 150, 580 S.E.2d at 120, does not support the

proposition. The earlier case stated: “The extended marsh created by

encroachment of the waters . . . also belongs to the State.” Coburg

Dairy, Inc. v. Lesser, 318 S.C. 510, 513, 458 S.E.2d 547, 548 (1995).

In the original context, however, it is clear that all the marshland

referred to in Coburg was below the mean high tide line, unlike that

in McQueen’s case.

16

are of environmental concern and subject to reasonable

land-use regulation, until now they have always been

treated as private property free of the public trust.

In its third expansion of South Carolina public

trust doctrine, the South Carolina Supreme Court used

the public trust to prohibit development of property that

has no navigational utility, despite precedents that

navigation is the principal recognized public trust

purpose in South Carolina. City of Folly Beach, 318 S.C.

at 452, 458 S.E.2d at 4:7. See Sierra Club v. Kiawah

Resort Assocs., 318 S.C. 119, 127-28, 456 S.E.2d 397,

402 (1995) (reciting novel public trust uses such as

recreating on the high seas). Even if McQueen’s property

is subject to the public trust by virtue of bordering on an

artificial waterway, the state cannot simply mention the

public trust and then completely eviscerate McQueen’s

property rights without a significant public trust

purpose. See Kaiser Aetna v. United States, 444 U.S. 164,

175 (1979). This constitutes a perversion of the public

trust doctrine into an anti-growth tool, when its

historical intent was to maximize efficient use of a

significant resource. See Lloyd R. Cohen, The Public Trust

Doctrine: An Economic Ferspective, 29 CAL. W. L. REV. 239,

254 (1992). See Richard J. Lazarus, Changing

Conceptions of Property and Sovereignty in Natural

Resources: Questioning the Public Trust Doctrine, 71 IOWA

L. REV. 631, 647 (1986).

The South Carolina Supreme Court cannot break

with long-established precedents regarding the

limitations, scope, and purposes of the public trust

doctrine in a result-oriented decision to prevent McQueen

from receiving compensation for the State’s regulations

which prohibit development of his property. With its

disregard of procedural and substantive precedents, the

decision below attempts to evade federal review South

Carolina’s abolition of McQueen’s property rights

17

protected by the federal Constitution’s Fifth and

Fourteenth Amendments.

CONCLUSION

For the reasons stated above, this Court should

grant McQueen’s petition for a writ of certiorari.

Respectfully submitted,

ANTHONY PALAZZOLO,

NEW ENGLAND LEGAL

FOUNDATION,

AMERICAN FARM BUREAU

FEDERATION, and

SOUTH CAROLINA FARM

BUREAU FEDERATION,

By their attorney,

Michael E. Malamut

Counsel of Record

for Amici Curize

New England

Legal Foundation

150 Lincoln Street

Boston, MA 02111

Telephone: (617) 695-3660

Facsimile: (617) 695-3656

Dated: September 29, 2003

18

2B COREL TE LAS POE A I yee Fe <r BH SS Pi y PLIES ise ed ¥ t ‘i A Se ee an

APPENDIX A

Rhode Island Supreme Court

No. 98-333-Appeal.

Anthony Palazzolo

v.

State of Rhode Island, by and through its

General Treasurer, Paul J. Tavares, et al. .

Order

This case came before the Supreme Court in

conference by virtue of a remand order from the Supreme

Court of the United States sub nom. Palazzolo v. Rhode

Island, et al., 533 U.S. 606 (2001), 121 S.Ct. 2448, 150 L.

Ed.2d. 592. On receipt of the Order of Remand from the

Supreme Court of the United States, this Court

requested counsel to file memoranda concerning the

issues to be submitted to the Superior Court for

purposes of conducting a trial of this case on remand.

Pursuant to this directive, counsel for the parties and

amicus counsel have filed memoranda, the most recent of

which was filed in June 2002. After considering the

memoranda and carefully analyzing the mandate of the

Supreme Court of the United States, we hereby remand

this case to the Presiding Justice of the Superior Court

for an assignment to a trial justice in accordance with

the following guidelines:

- The trial justice will take all necessary evidence in

order to determine the claim of Anthony Palazzolo for

monetary damages against the State of Rhode Island for

an alleged regulatory taking of his property by analyzing

his reasonable investment-backed expectations in

accordance with the principles enunciated in Penn

Central Transportation Co. v. New York City, 438 U.S. 104,

98 S.Ct. 2646, 57 L.Ed.2d 631 (1978).

1

y & In conducting this analysis, the trial justice should

consider inter alia the effect of the Public Trust Doctrine

as enunciated in Greater Providence Chamber of

Commerce, et al. v. Rhode Island, 657 A.2d 1038 (R.I.

1995), on such _ reasonable investment-backed

expectations.

3. The trial justice shall require that a complete

survey of the Palazzolo property be filed with the Court

prior to any hearing. This survey should establish,

among other elements, the portion of the Palazzolo

marshlands that are below the high-water mark of tidal

effect.

4. The trial justice should consider the effect of the

Public Trust Doctrine upon the limitations of title

originally acquired by Mr. Palazzolo and his predecessor

in title, Shore Gardens, Inc., in accordance with the

principles enunciated in Lucas v. South Carolina Coastal

Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798

(1992). Attention should be given to the doctrine as

enunciated in Shively v. Bowlby, 152 U.S. 1, 57, 14

S.Ct.548, 569, 38 L.Ed. 331, 352 (1894).

5. The trial justice should also consider the effect, if

any, of the doctrines of public and private nuisance upon

Mr. Palazzolo’s reasonable investment-backed

expectations.

6. In the event that the trial justice should find that

a regulatory taking of the Palazzololand has occurred, he

should then make appropriate findings regarding the

measure of damages, if any, for such taking.

ve The trial justice shall make all necessary findings

of fact and conclusions of law and thereupon render a

judgment that will respond to all issues appropriately

raised by the parties, including, but not limited to, the

. -" " . ays F ‘ fe: “ KeSi se NA EAS

2% ep Ree ea RN NS OOS Me eter Pos Be. ‘ Pi ae ek Po eb pice es :

PERE MEARE Re CRU SARE LAS Os aes Aigner Ps ASSIS cone Ata RIT Metals Ope Reba ees Rar dame MCS cot NN > Ree Sindy th 2

issues set forth in the guidelines enunciated in this

Order.

8. Either party who may be aggrieved by this

judgment may appeal to this Court.

Chief Justice Weisberger (Ret.) participated in

the deliberations relative to this Order.

Chief Justice Williams did not participate.

Entered as an order of this Court on this 24th

day of June, 2002.

By Order,

s/Brian B. Burns

Clerk