In the 60’s FL enacted the BSPA Act to prevent further erosion to particular beach areas. In 2003 the state of FL attempted to replenish an eroded beach by pumping sand from shallow, submerged beach area onto the beach shore. The state filed for an Application for Joint Coastal Permit and Authorization to Use Sovereign Submerged Lands to gain authorization for the sand dredging with the EPA. The permit was challenged by the Plaintiff organization. Shore lands, argued the organization, are typically held in public trust for all people to own and enjoy. When they are depleted as proposed by the state, the organization argued there was a constitutional taking, for which there should be just compensation given to the public.
Whether dredging submerged sand from the public’s shoreline constitutes a taking pursuant to the 5th and 14th amendments.
No, the dredging does not constitute a judicial taking. There is no taking where the property owners cannot show they have “rights to future exposed land.” The people with rights to future exposed land would be those who might own the submerged land once it becomes exposed post-dredging. Moreover, their right to the land must also be “superior” to the state’s right to dredge.
In the instant case, the state showed it owned the submerged land and therefore had the right to fill it. The state therefore still owns the to-be exposed land after the dredging, even if the adjacent property owners’ property is no longer technically a “beachfront” property.