THE BEACH ON THE BENCH: The Supreme Court will take up area restoration battle on Wednesday (UPDATED with PHOTOS)

As a local beach restoration battle reaches the highest court in the land Wednesday, Destinite Denny Jones from Save Our Beaches will be listening from a seat in the courthouse.

“It’s a once in a lifetime opportunity to be there to watch something that you’re involved in, and I’ve been involved in this since the city’s first attempt to take my property in 1999,” Jones said. “They changed my property deed without my permission, without my signature and against my protest. Government shouldn’t have that power.”

The nine Supreme Court justices will hear oral arguments by Stop the Beach Renourishment, Inc. and the Florida Department of Environmental Protection on Wednesday in a case that could determine the fate of beach renourishment projects nationwide.

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To see photos from the disputed restoration project, click here.

To read an analysis on how the court might rule, click here.

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The battle has been brewing since the Florida Legislature enacted the Beach and Shore Preservation Act in 1965.The act altered beachfront property rights and began statewide beach restoration and renourishment projects.

While the mean high water line, a flucuating boundary, seperates private from public property in most states, Florida has established a static erosion control line. Everything seaward of the line is public, which some property owners say violates their right of accretion.

“When you own waterfront property, you have water rights based on old English common law and our Constitution,” said Roland Guidry from Oceania Condominiums. “If a state law like Florida statute 161 is set up to draw a line along the beach like the ECL and sand is dumped on the water side of that line, you no longer have the rights of contact with the water and accretion.”

According to the Florida Supreme Court, which ruled against Stop the Beach Renourishment in a 5 to 2 vote in September 2008, Florida common law never provided the rights of contact and accretion. However, Justice R. Fred Lewis wrote a harsh dissent, saying the decision was “based on infirm, tortured logic and a recession from existing precedent.” He said his colleagues had “butchered” Florida law to further the beach renourishment project.

“The intent of this was not to renourish beaches, but to create a public beach such that the local government can foster tourism,” said Kent Safriet, an attorney for Stop the Beach Renourishment. “The state can’t just change the law because it receives a windfall by doing so.”

While Justice Lewis’ dissent may have been what captured the attention of the Supreme Court, Justice Antonin Scalia made it known that he wanted to review a federal takings case as far back as 1994 when he said if the state court changed a property owner’s rights by “invoking nonexistent rules of state substantive law” a challenge would be warranted. But the court has since passed on 15 such cases before taking up this case.

“What’s at stake in this case is whether or not a court can make important changes in property law without violating the just compensation clause of the U.S. Constitution,” said D. Benjamin Barros, a law professor at Widener University who edits a blog on property law. “The property owners are saying that they have constitutionally protected property rights but now the government has given them similar, but inferior and changeable rights.”

Although Florida statute 161 states that all of the beachfront property owners’ common-law littoral rights will be preserved, the property owners argue that statutory rights are subject to be changed and are not equivalent to constitutionally protected rights.

But Destin city manager Greg Kisela disagrees.

“All the rights the Gulf front property owners have today, they will have tomorrow when beach restoration is performed,” Kisela said. “The only thing we’re guilty of is giving them free sand.”

The case before the court hinges on Walton County’s 2006 beach restoration project. While that project is complete, a new restoration plan for beaches in Okaloosa Island and Destin has drawn lawsuits from Guidry and others.

Destin Mayor Craig Barker said that whether the state statute is confirmed or found unconstitutional, the city wants closure on this issue so that they can move forward with placing sand on the beaches. He said that for beach renourishment to continue in the event of a ruling against the FDEP, the state law requiring the establishment of an erosion control line would have to be changed.

According to Barros, this may not be the best case to settle the issue because the court will have to delve into Florida common law and technical aspects of the case such as the erosion control line. The federal government agrees, and Solicitor General Elena Kagan will be making an oral argument for the FDEP.

“A win for the petitioners could place practical limits on what the courts can do, which could be a good thing,”Barros said. “I don’t think every change in property law should be a taking, but for major changes there has to be some limit in government power.”