Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection , 560 U.S. 702 ( 2010 )


Menu:
  • (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
    2      STOP THE BEACH RENOURISHMENT, INC. v. FLOR- 
    
             IDA DEPT. OF ENVIRONMENTAL PROTECTION 
    
                          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- 
    
             IDA DEPT. OF ENVIRONMENTAL PROTECTION 
    
                          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- 
    
                  IDA DEPT. OF ENVIRONMENTAL PROTECTION 
    
                               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.
    8     STOP THE BEACH RENOURISHMENT, INC. v. FLOR- 
    
            IDA DEPT. OF ENVIRONMENTAL PROTECTION 
    
                                    the Court
                         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
    
                                    the Court
                         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
    10    STOP THE BEACH RENOURISHMENT, INC. v. FLOR- 
    
            IDA DEPT. OF ENVIRONMENTAL PROTECTION 
    
                                    the Court
                         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.
                         Cite as: 560 U. S. ____ (2010)                  11
    
                                        the Court
                             Opinion of SCALIA, J.
    
    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.
    12    STOP THE BEACH RENOURISHMENT, INC. v. FLOR- 
    
            IDA DEPT. OF ENVIRONMENTAL PROTECTION 
    
                                    the Court
                         Opinion of SCALIA, J. 
    
    
    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
                          Cite as: 560 U. S. ____ (2010)                       13
    
                                          the Court
                               Opinion of SCALIA, J.
    
    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.
    14    STOP THE BEACH RENOURISHMENT, INC. v. FLOR- 
    
            IDA DEPT. OF ENVIRONMENTAL PROTECTION 
    
                                    the Court
                         Opinion of SCALIA, J. 
    
    
                                    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
                      Cite as: 560 U. S. ____ (2010)            15
    
                                     the Court
                          Opinion of SCALIA, J.
    
    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
    16    STOP THE BEACH RENOURISHMENT, INC. v. FLOR- 
    
            IDA DEPT. OF ENVIRONMENTAL PROTECTION 
    
                                    the Court
                         Opinion of SCALIA, J. 
    
    
    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
                     Cite as: 560 U. S. ____ (2010)          17
    
                                    the Court
                         Opinion of SCALIA, J.
    
    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
    18    STOP THE BEACH RENOURISHMENT, INC. v. FLOR- 
    
            IDA DEPT. OF ENVIRONMENTAL PROTECTION 
    
                                    the Court
                         Opinion of SCALIA, J. 
    
    
    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
                      Cite as: 560 U. S. ____ (2010)           19
    
                                     the Court
                          Opinion of SCALIA, J.
    
    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
    20    STOP THE BEACH RENOURISHMENT, INC. v. FLOR- 
    
            IDA DEPT. OF ENVIRONMENTAL PROTECTION 
    
                                    the Court
                         Opinion of SCALIA, J. 
    
    
    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
                          Cite as: 560 U. S. ____ (2010)                    21
    
                                         the Court
                              Opinion of SCALIA, J.
    
    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.
    22    STOP THE BEACH RENOURISHMENT, INC. v. FLOR- 
    
            IDA DEPT. OF ENVIRONMENTAL PROTECTION 
    
                                    the Court
                         Opinion of SCALIA, J. 
    
    
    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
                      Cite as: 560 U. S. ____ (2010)           23
    
                                     the Court
                          Opinion of SCALIA, J.
    
    (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,
    24     STOP THE BEACH RENOURISHMENT, INC. v. FLOR- 
    
             IDA DEPT. OF ENVIRONMENTAL PROTECTION 
    
                          Opinion of the Court 
    
    
    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- 
    
            IDA DEPT. OF ENVIRONMENTAL PROTECTION 
    
                       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- 
    
            IDA DEPT. OF ENVIRONMENTAL PROTECTION 
    
                       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.”
    

Document Info

DocketNumber: 08-1151

Citation Numbers: 560 U.S. 702, 130 S. Ct. 2592, 177 L. Ed. 2d 184, 2010 U.S. LEXIS 4971

Filed Date: 6/17/2010

Precedential Status: Precedential

Modified Date: 3/23/2018

Authorities (72)

Smith v. Spisak , 558 U.S. 139 ( 2010 )

Yates v. Milwaukee , 77 U.S. 497 ( 1871 )

Pumpelly v. Green Bay Co. , 80 U.S. 166 ( 1872 )

County of St. Clair v. Lovingston , 90 U.S. 46 ( 1874 )

Chicago, B. & QR Co. v. Chicago , 166 U.S. 226 ( 1897 )

Scranton v. Wheeler , 179 U.S. 141 ( 1900 )

Dreyer v. Illinois , 187 U.S. 71 ( 1902 )

United States v. Detroit Timber & Lumber Co. , 200 U.S. 321 ( 1906 )

United States v. Cress , 243 U.S. 316 ( 1917 )

Ward v. Board of Commr's of Love Cty. , 253 U.S. 17 ( 1920 )

Pennsylvania Coal Co. v. Mahon , 260 U.S. 393 ( 1922 )

Rooker v. Fidelity Trust Co. , 263 U.S. 413 ( 1924 )

Village of Euclid v. Ambler Realty Co. , 272 U.S. 365 ( 1926 )

Nectow v. Cambridge , 277 U.S. 183 ( 1928 )

Washington Ex Rel. Seattle Title Trust Co. v. Roberge , 278 U.S. 116 ( 1928 )

Broad River Power Co. v. South Carolina Ex Rel. Daniel , 281 U.S. 537 ( 1930 )

Brinkerhoff-Faris Trust & Sav. Co. v. Hill , 281 U.S. 673 ( 1930 )

Ashwander v. TVA , 297 U.S. 288 ( 1936 )

Demorest v. City Bank Farmers Trust Co. , 321 U.S. 36 ( 1944 )

United States v. Causby , 328 U.S. 256 ( 1946 )

View All Authorities »

Cited By (66)

McDonald v. Chicago , 561 U.S. 742 ( 2010 )

Acorn Land, LLC v. Baltimore County, Maryland ( 2010 )

Bettendorf v. St. Croix County , 631 F.3d 421 ( 2011 )

Harmon v. Markus ( 2011 )

Smith v. Almada , 640 F.3d 931 ( 2011 )

Rosedale Missionary Baptist v. New Orleans City ( 2011 )

Rosedale Missionary Baptist v. New Orleans City ( 2011 )

DOWNING/SALT POND v. RI & Providence Plantations , 643 F.3d 16 ( 2011 )

Vandevere v. Lloyd , 644 F.3d 957 ( 2011 )

David Smith v. Us ( 2013 )

Horne v. Department of Agriculture , 133 S. Ct. 2053 ( 2013 )

Brian Helm v. Charles Liem ( 2013 )

Scott N. Waller v. American Transmission Company, LLC ( 2013 )

In Re: Lazy Days' RV Center v. ( 2013 )

Shinnecock Indian Nation v. United States ( 2013 )

Lynnhaven Dunes Condo. Ass'n v. City of Virginia Beach ( 2012 )

Stokes v. American Cyanamid Co. , 787 F. Supp. 2d 836 ( 2011 )

Kriss v. Fayette County , 827 F. Supp. 2d 477 ( 2011 )

Sifuentes v. American Cyanamid Co. , 787 F. Supp. 2d 843 ( 2011 )

Owens v. American Cyanamid Co. , 787 F. Supp. 2d 828 ( 2011 )

View All Citing Opinions »