DRAWING LINES IN THE SHIFTING SANDS OF CAPE CANAVERAL: WHY COMMON BEACH EROSION SHOULD NOT YIELD A COMPENSABLE TAKING UNDER THE FIFTH AMENDMENT

Jeremy N. Jungreis

This article advocates drawing a line in the proverbial sand and resisting the expansion of physical takings doctrine, particularly through its application to the facts of Applegate v. United States. In Applegate, the Federal Circuit allowed 320 property owners to sue the Federal Government for a taking of their dry sand beaches. The nature of the claim was that federal navigational improvements of the Cape Canaveral Harbor in 1951 had taken sand over a forty year period that otherwise would have replenished the plaintiffs' beaches. Though arguably societal good has come from the Supreme Court's extension of regulatory takings, this article argues that a dramatic expansion of physical takings doctrine will result in harm to American society. Abstract expectancies in public goods are simply an insufficient reason to support a new genre of compensable physical takings claims.

Accordingly, Part II of this article delineates the traditional constitutional parameters and defenses of physical takings doctrine and assesses the treatment of these themes during modern times. Part III then presents the factual backdrop of the Applegate litigation, and examines the Federal Circuit's controversial resolution of a potentially far-reaching statute of limitations issue. Part IV analyzes the significant legal issues presented in Applegate, questioning whether free-floating sand can ever be considered a compensable property interest. Assuming a compensable property interest can exist, Part V addresses whether the government can directly "take" beach sands, given the dynamic nature of ocean and beach systems. Part VI assumes, arguendo, that a property interest and causation can be established, and thereby discusses what declaration of compensable taking, if any, would be required in the Applegate case given modern takings jurisprudence. Finally, Part VII posits economic and political policy arguments against expanding physical takings doctrine into the context of Applegate-genre injuries to private property.

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