AFTER THE SUPREMES: Court watchers speculate on how justices are leaning in beach restoration case (with TRANSCRIPT and PHOTOS)

Supreme Court justices fired hard questions at attorneys on both sides of the aisle Wednesday, but the state left feeling that they had a slight edge over the property owners.

“I think the judgment will be in favor of the state,” said Yale law professor Thomas Merrill, who watched oral arguments from Stop the Beach Renourishment and the Florida Department of Environmental Protection as a representative of Destin. “I don’t think the arguments or the questions indicated that the justices thought there was a judicial taking in this case.”

Merrill said the justices, who numbered eight rather than nine after Judge John Paul Stevens recused himself because he owns beachfront property in Florida, seemed to be very interested in the case. But he didn’t get the sense that any of them thought the decision of the Florida Supreme Court was outrageous.

While some of the more conservative justices seemed to try to leave the idea of a judicial taking open for debate, Merrill argues that the claims in this particular case are “debatable at best.”

“The precedents all involve slightly different circumstances,” Merrill said. “I think the justices will ultimately say this isn’t a case involving some runaway state court.”

But Tammy Alford, president of STBR and a Destin homeowner, said she thought both sides were battered with tough questions.

“Frankly, when our attorney started, when Ken began his argument, I thought we lost because they jumped on him right away,” Alford said. “But they did the same thing to the other side.”

While she was initially concerned about the justices’ line of questioning, Alford said the proceedings, which lasted a little over an hour, were also very humorous at points.

Chief Justice John Roberts drew a laugh from the crowd when he asked whether or not someone could erect a hot dog stand in front of the property owners’ homes. And Justice Samuel Alito brought up the possibility of Spring Break parties taking place on their doorstep.

“I think he (Alito) was proving his point that we would be negatively impacted with a public beach in front of us,” Alford said. “The hypotheticals seemed to indicate that they were thinking bigger than our situation.”

And D. Benjamin Barros, a law professor at Widener State University who edits a blog on property law, agreed that the justices were thinking of the larger idea of a judicial taking. While he does not predict a win for the property owners, Barros said he was surprised at how many members of the court seemed to be open to the idea of a judicial taking.

“I think it may come down to there not being enough support in Florida precedent in Justice Kennedy’s view, and the property owners can’t win without him,” Barros said. “It might be that, in his perception, Florida law is not as black and white as the property owners would like it to be.”

But Barros was quick to note that trying to predict the outcome of a case based on questions is “a fool’s game.”

And he said that the property owners’ attorney, Ken Safriet, did an excellent job of arguing the case. He also pointed out that the absence of Justice Stevens, who he said would be expected to oppose the property owners’ claims, may help them.

“The justices obviously see this as a difficult issue, but also an interesting puzzle,” Barros said. “They were curious and asked some good questions. It was, in some ways, the Supreme Court at its best.”

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TO READ A TRANSCRIPT OF THE ORAL ARGUMENTS, CLICK HERE.

For a collection of coverage on the big day, from The Log and around the nation, click here.

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

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Reporter Fraser Sherman poured through the 64-page transcript of oral arguments and offers this report.

Beach restoration is a lot like building a sidewalk — or a bridge — or maybe a nuclear power plant.

Those were among the analogies tossed around during the opening arguments of Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection. The case was appealed to the U.S. Supreme Court from a Florida Supreme Court case concerning a 2006 beach restoration project in Walton County.

Attorneys on both sides of the issue had a half an hour to convince the justices.

“The Florida Supreme Court suddenly and dramatically redefined property rights, converting oceanfront property into oceanview property to avoid the finding of a taking,” D. Kent Safriet, the attorney for the Walton owners who formed STBR told the justices Wednesday.

STBR and Save Our Beaches formed in 2004 to challenge a six-mile Destin/Walton beach restoration project. Owners objected that south of a state-set erosion control line, the added beach would be public land: They would no longer own to the water’s edge, and if sand accumulated naturally, it would expand public property, not their own.

Both groups took their suit against the project to the First District Court, which decided Save Our Beaches didn’t have standing to sue. In 2006, the court sided with the STBR owners, ruling that the loss of contact with the water and the loss of the “right of accretion” amounted to a taking, so the government had to pay the owners for the value of what it took.

The Florida Supreme Court ruled against STBR on several grounds: The loss of accretion is compensated for by the protection from erosion; owners can still “access, use and view” the water; waterfront ownership doesn’t mean their land has to literally touch the Gulf.

A recurring topic in Wednesday’s opening argument was the doctrine of “avulsion,” covering sudden movements of waterfront land caused by floods or storm surges. Some of the justices asked if restoring the beach wasn’t a form of avulsion.

“There is no case law in Florida or no principle that says avulsion can occur by artificial means,” Safriet said.

“If there is no case law, it seems to me you’ve lost your case,” Justice Antonin Scalia replied.

“Case law specifically states that avulsion is a result of natural occurrences,” Safriet said.

“All you lost was the right to touch the water,” Justice Stephen Breyer said, but “you in effect have that right because you can walk right over it and get to the water.”

Breyer said that owners could still walk to the water, see the water, and take a boat to the water, so what difference did restoration make?

Chief Justice John Roberts replied that the state could put up a hot-dog stand on the new land; Breyer said that state law guarantees the owners will keep their right to “peaceful enjoyment” of the beach. Roberts said the Legislature could redefine the law any time it wanted.

Similar hypothetical questions and analogies filled the hour-long arguments:

•Even without restoration, couldn’t the state have allowed a floating hot-dog stand in the water behind the STBR homes, if it chose?

•Would the owners have any defense if the state decided to promote spring break by holding televised beach parties from the public portion of the beach?

•Was beach restoration similar to the way government has the authority to run sidewalks in front of someone’s home, even if they object?

•Should it be compared, instead, to government blocking a landowner’s view by building a bridge behind their house?

•If the government had restored the beach gradually, a foot at a time, would that be avulsion, or be treated as normal accretion, with the sand going to the landowners?

•If beach restoration is covered by the laws of avulsion, “does that mean the state could come in and knock down the house and say this is artificial avulsion?” Justice Samuel Alito asked.

•If the government found legal grounds for building a nuclear power plant on someone’s property without compensating them, shouldn’t the owners have a Constitutional remedy?

•Doesn’t the added protection from erosion that comes with a wider beach compensate for the owners’ reduced rights?

“If you go in and ask for compensation the state might say we’ve given them this property right in exchange,” Scalia said, “and the difference between that and what they have now is two dollars.”

The law says the state can use the added beach to offset compensation, Safriet replied, but the owners were entitled to have a court set the amounts: “They haven’t provided us with the opportunity to go to that trial.”

The oral arguments ended at 11:04 a.m. Wednesday.