Florida Beach Ruling Could Shape Hawaii Sand Fight

Flickr: dbking

Attorneys on opposite sides of an argument over who owns growing Hawaii beaches are studying the potential meaning of last week's U.S. Supreme Court decision in a Florida case. And like with a Rorschach test, they're seeing the same thing differently.

The court ruled against Stop The Beach Renourishment, a group of landowners who argued that they should be compensated by the state of Florida because a public beach restoration project put dozens of feet of sand between their property and the sea. They said that amounted to a "taking" of their rights.

Although the decision [pdf] in favor of the Florida Department of Environmental Protection was unanimous, 8-0 with one recusal, that harmony was deceptive. The court was split into three factions with three otherwise similar opinions that differed considerably on the new concept of a "judicial taking." If applied, that theory would make courts, just like legislative and executive branches of government, liable for taking previously private property.

In the days since the decision was handed down June 17, many legal analysts have focused on the potential widespread impact of employing that principle. Law professor Ben Barros made Seven points, the University of Chicago asked a key question and the New York Times authored an editorial.

But the case touches on a number of other principles that are important here in Hawaii, as can be seen by the response of the two local attorneys.

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