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American Bird Conservancy v. Federal Communications Comm'n

ELR Citation: 38 ELR 20257
Nos. No. 06-15429, (9th Cir., 10/06/2008)

The Florida Supreme Court held that on its face, the state Beach and Shore Preservation Act does not unconstitutionally deprive upland owners of littoral rights without just compensation. The Act effectuates the state's constitutional duty to protect Florida's beaches, and it achieves a reasonable balance between public and private interests in the shore. Specifically, the Act benefits upland owners by restoring lost beach, protecting their property from future storm damage and erosion, and preserving their littoral rights to use and view water. The Act also benefits upland owners by protecting their littoral right of access to the water, which is the sole justification for the ancillary right of contact to water. Additionally, the Act authorizes actions to reclaim public beaches that are also authorized under the common law after an avulsive event, such as a hurricane. Furthermore, the littoral right to accretion is not implicated by the Act because the reasons underlying this common-law rule are not present here. The court's finding, however, is strictly limited to the context of restoring critically eroded beaches under the Act. The court, therefore, quashed a lower court's decision that the Act results in an unconstitutional taking.