News
Opinion
Can a court turn private prop erty into public property by arbitrary order, without a penny paid to the landowners?
For two decades, beachfront landowners on the California side of Lake Tahoe have been living under the shadow a state Supreme Court decision that seemed to do just that.
The 1981 ruling is known as the Fogerty case. At the time, the state Supreme Court was headed by controversial Chief Justice Rose Bird, who was eventually tossed out by voters for pushing what critics called a left-wing agenda through judicial activism.
In Fogerty, the Bird Court put a new and unjustified spin on an old and obscure legal doctrine, called public trust. The court announced that Tahoe private beaches would henceforth be open to the general public, at least up to the high water mark.
In other words, people who owned land and paid taxes on it were told they couldn't restrict who came on their property.
This eyebrow-raising edict seemed like a natural for the U.S. Supreme Court to review, because a core tenet of the U.S. Constitution was at stake: The Fifth Amendment says government can't “take” private property for public use without “just compensation” for the owner.
California officials realized they had a hot potato on their hands, and in a successful bid to keep the justices in D.C. from taking the case, the state announced it wouldn't be enforcing the California court's new public trust doctrine.
That's where things rested for the next 18 years – with the court's ruling left in limbo. Last fall, however, the spirit of Fogerty was conjured back to life. The State Lands Commission voted to start enforcing an expanded public trust doctrine on private landowners.
The agency followed up, in January, by ordering removal of a fence that barred trespassers from a quarter mile of beach front between Kings Beach and Crystal Bay, Nev.
“It's public now,” an onlooker exulted as the fence came down (as quoted in the Sierra Sun).
But the last word on what's really public along the Tahoe shore may still come from the U.S. Supreme Court. With Fogerty out of deep freeze, the High Court won't have the same reason as in 1981 to take a pass if asked to weigh in.
Also, the justices may not be inclined to show a lot of deference for the California Supreme Court's assault on Tahoe property rights. Not if they follow through on a warning they issued several weeks ago, in a case out of Florida.
In Stop the Beach Renourish ment, the court was considering a Florida program that dumps sand in front of beaches to reverse erosion. Beachfront landowners claimed that the program — and the Florida Supreme Court, by approving it — robbed them of their rights, because the sand-dumping creates a new, public beach between their property and the water.
But the U.S. Supreme Court didn't agree that any property rights had been abridged. It ruled that nothing in Florida's traditional law of ownership had been contradicted.
Why is this case relevant for Tahoe — and why can landowners here take encouragement?
Because even while ruling against the property owners who brought the lawsuit, the court un derscored the importance of property rights in general and sent a stern message to lower courts. Six of the justices said that — even though it didn't happen in Florida — if courts do arbitrarily cancel property rights, they will be held to violate the Constitution.
As my colleague Jim Burling, director of litigation at Pacific Legal Foundation, said after the ruling: “All courts, everywhere, have been put on notice: They cannot redefine people's property rights out of existence, or they have committed a taking in violation of the Con stitution. Judges have been warned that they are as answerable to the Fifth Amendment as any other pub lic officials.”
“Redefining people's property rights out of existence.” That's what the California Supreme Court did when it announced — suddenly, jarringly, and, frankly, arrogantly — that Tahoe private beaches aren't pri vate anymore. If bureaucrats now insist on enforcing that judicial decree, look for a lawsuit that could end up at the nation's highest court. And don't be surprised if the state loses — and the state's highest court is declared in violation of the nation's highest law.
— A part-time resident at Echo Summit, Kim DeVincenzi is CFO of Pacific Legal Foundation, www.pacificlegal.org, a Sacramento-based watchdog organization that litigates nationwide for property rights.
For two decades, beachfront landowners on the California side of Lake Tahoe have been living under the shadow a state Supreme Court decision that seemed to do just that.
The 1981 ruling is known as the Fogerty case. At the time, the state Supreme Court was headed by controversial Chief Justice Rose Bird, who was eventually tossed out by voters for pushing what critics called a left-wing agenda through judicial activism.
In Fogerty, the Bird Court put a new and unjustified spin on an old and obscure legal doctrine, called public trust. The court announced that Tahoe private beaches would henceforth be open to the general public, at least up to the high water mark.
In other words, people who owned land and paid taxes on it were told they couldn't restrict who came on their property.
This eyebrow-raising edict seemed like a natural for the U.S. Supreme Court to review, because a core tenet of the U.S. Constitution was at stake: The Fifth Amendment says government can't “take” private property for public use without “just compensation” for the owner.
California officials realized they had a hot potato on their hands, and in a successful bid to keep the justices in D.C. from taking the case, the state announced it wouldn't be enforcing the California court's new public trust doctrine.
That's where things rested for the next 18 years – with the court's ruling left in limbo. Last fall, however, the spirit of Fogerty was conjured back to life. The State Lands Commission voted to start enforcing an expanded public trust doctrine on private landowners.
The agency followed up, in January, by ordering removal of a fence that barred trespassers from a quarter mile of beach front between Kings Beach and Crystal Bay, Nev.
“It's public now,” an onlooker exulted as the fence came down (as quoted in the Sierra Sun).
But the last word on what's really public along the Tahoe shore may still come from the U.S. Supreme Court. With Fogerty out of deep freeze, the High Court won't have the same reason as in 1981 to take a pass if asked to weigh in.
Also, the justices may not be inclined to show a lot of deference for the California Supreme Court's assault on Tahoe property rights. Not if they follow through on a warning they issued several weeks ago, in a case out of Florida.
In Stop the Beach Renourish ment, the court was considering a Florida program that dumps sand in front of beaches to reverse erosion. Beachfront landowners claimed that the program — and the Florida Supreme Court, by approving it — robbed them of their rights, because the sand-dumping creates a new, public beach between their property and the water.
But the U.S. Supreme Court didn't agree that any property rights had been abridged. It ruled that nothing in Florida's traditional law of ownership had been contradicted.
Why is this case relevant for Tahoe — and why can landowners here take encouragement?
Because even while ruling against the property owners who brought the lawsuit, the court un derscored the importance of property rights in general and sent a stern message to lower courts. Six of the justices said that — even though it didn't happen in Florida — if courts do arbitrarily cancel property rights, they will be held to violate the Constitution.
As my colleague Jim Burling, director of litigation at Pacific Legal Foundation, said after the ruling: “All courts, everywhere, have been put on notice: They cannot redefine people's property rights out of existence, or they have committed a taking in violation of the Con stitution. Judges have been warned that they are as answerable to the Fifth Amendment as any other pub lic officials.”
“Redefining people's property rights out of existence.” That's what the California Supreme Court did when it announced — suddenly, jarringly, and, frankly, arrogantly — that Tahoe private beaches aren't pri vate anymore. If bureaucrats now insist on enforcing that judicial decree, look for a lawsuit that could end up at the nation's highest court. And don't be surprised if the state loses — and the state's highest court is declared in violation of the nation's highest law.
— A part-time resident at Echo Summit, Kim DeVincenzi is CFO of Pacific Legal Foundation, www.pacificlegal.org, a Sacramento-based watchdog organization that litigates nationwide for property rights.
