510 U.S. 1207 | SCOTUS | 1994
Dissenting Opinion
This is a suit by owners of a parcel of beachfront property against the city of Cannon Beach and the State of Oregon. Petitioners purchased the property in 1957. In 1989, they sought a building permit for construction of a seawall on the dry-sand portion of the property. When the permit was denied, they brought this inverse condemnation action against the city in the
In order to clarify the nature of the constitutional questions that the case presents, a brief sketch of Oregon ease law involving beachfront property is necessary.
I
In 1969, the State of Oregon brought suit to enjoin owners of certain beachfront tourist facilities from constructing improvements on the “dry-sand” portion of their properties. The trial court granted an injunction. State ex rel. Thornton v. Hay, supra. In defending that judgment on appeal to the Supreme Court of Oregon, the State briefed and argued its case on the theory that by implied dedication or prescriptive easement the public had acquired the right to use the dry-sand area for recreational purposes, precluding development. The Supreme Court of Oregon found “a better legal basis” for affirming the decision and decided the case on an entirely different theory:
“The most cogent basis for the decision, in this case is the English doctrine of custom. Strictly construed, prescription applies only to the specific tract of land before the court, and doubtful prescription cases could fill the courts for years with tract-by-tract litigation. An established custom, on the other hand, can be proven with reference to a larger region. Ocean-front lands from the northern to the southern border of the state ought to be treated uniformly.” Id., at 595, 462 P 2d, at 676.
Or so it seemed until 1989. That year, the Supreme Court of Oregon revisited the issue of dry-sand beach in the case of McDonald v. Halvorson, 308 Ore. 340, 780 P. 2d 714 (1989). There, the beachfront property owners who were plaintiffs sought a judicial declaration that their property included a portion of dry-sand area adjacent to a cove of the Pacific Ocean. With such a declaration in place, they hoped to gain access (under Thornton, as members of the public) to the remaining dry-sand area of the cove lying on property to which the defendants held record title. The State intervened to assert the public’s right (under the doctrine of custom) to use the dry-sand area of the cove, and to enjoin defendants from interfering with that right. The Supreme Court of Oregon held that the public had no right to recreational use of the dry-sand portions of the cove beach. 308 Ore., at 360, 780 P. 2d, at 724. McDonald noted what it called inconsistencies in Thornton, 308 Ore., at 358-359, 780 P. 2d, at 723, and resolved them by stating that “nothing in [Thornton] fairly can be read to have established beyond dispute a public claim by virtue of ‘custom’ to the right to recreational use of the entire Oregon coast.” Id., at 359, 780 P. 2d, at 724. “[Tjhere may also be [dry-sand] areas,” the court said, “to which the doctrine of custom is
With McDonald now the leading case interpreting the law of custom, petitioners here brought their takings challenge in the Oregon state trial court. As recited above, that court dismissed for failure to state a claim upon which relief could be granted, saying that “[Thornton] teaches us that ocean front owners cannot enclose or develop the dry sand beach area so as to exclude the public therefrom. . . . [B]ecause of the public’s ancient and continued use of the dry sand area on the Oregon coast ... its future use thereof cannot be curtailed or limited.” App. to Pet. for Cert. C-24. The trial court did not cite McDonald, and its peremptory dismissal prevented petitioners from doing what McDonald clearly contemplated their doing: providing the factual predicate for their challenge through testimony of customary use showing that their property is one of those areas “to which the doctrine of custom [was] not applicable.” McDonald, supra, at 359, 780 P. 2d, at 724. Moreover, when petitioners attempted to introduce such factual material on appeal they were rebuffed on the ground that appeal was confined to the purely legal question whether the complaint stated a claim under Oregon law. App. to Pet. for Cert. 1-197 to 1-198 (Tr., Mar. 3, 1993); see also id., at 1-185 to 1-190.
In its decision here, the Supreme Court of Oregon quoted portions of Thornton's sweeping language appearing to declare the law of custom for all the Oregon shore. But it then read Thornton (which also originated in a dispute over property in Cannon Beach) to have said that the “historic public use of the dry sand area of Cannon Beach met [Blackstone’s] requirements.” 317
II
As a general matter, the Constitution leaves the law of real property to the States. But just as a State may not deny rights protected under the Federal Constitution through pretextual procedural rulings, see NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 455-458 (1958), neither may it do so by invoking nonexistent rules of state substantive law. Our opinion in Lucas, for example, would be a nullity if anything that a state court chooses to denominate “background law” — regardless of whether it is really such — could eliminate property rights. “[A] State cannot be permitted to defeat the constitutional prohibition against taking property without due process of law by the simple device of as
To say that this case raises a serious Fifth Amendment takings issue is an understatement. The issue is serious in the sense that it involves a holding of questionable constitutionality; and it is serious in the sense that the landgrab (if there is one) may run the entire length of the Oregon coast.
Petitioners’ due process claim, however, is another matter. Respondents’ brief in opposition does not respond to that claim on its merits, but asserts that petitioners’ claim has been “raise[d] for the first time in their petition for certiorari.” Brief in Opposition 25. I think not. Petitioners argued before the Court of Appeals of Oregon that since they were not parties to Thornton, their rights to dry-sand beach could not have been determined by that decision because they “have not had their day in court.” App. to Pet. for Cert. G-90 to G-92, and n. 3. In their brief to
I would grant the petition for certiorari with regard to the due process claim.
The Supreme Court of Oregon described the English doctrine of custom as applying to land used in a certain manner (1) so long that the mind runneth not to the contrary; (2) without interruption; (3) peaceably; (4) where the public use has been appropriate to the land and the usages of the community; (5) where the boundary is certain; (6) where the custom is obligatory (not left up to individual landowners as to whether they will recognize the public’s right to access); and (7) where the custom is not repugnant to or inconsistent with other customs or laws.
While narrowing Thornton in this respect, McDonald seemingly expanded it in another: ‘“Dry-sand area’ as used in [Thornton] can apply equally to gravel beaches, beaches strewn with or even made up of boulders, and other areas adjacent to the foreshore which, like the beach in [Thornton], have long been used for recreational purposes by the general public.” 308 Ore., at 359, 780 R 2d, at 724.
This reading of Thornton is in my view unsupportable. Thornton did not limit itself to “the dry sand area of Cannon Beach.” On the contrary, Thornton includes the following statements: “Ocean-front lands from the northern to the southern border of the state ought to be treated uniformly.” 254 Ore., at 595, 462 R 2d, at 676. “This case deals solely with the dry-sand area along the Pacific shore . . . .” Ibid. “The custom of the people of Oregon to use the dry-sand area of the beaches for public recreational purposes meets every one of Blackstone’s requisites.” Id.., at 597, 462 P. 2d, at 677. “[T]he custom of the inhabitants of Oregon and of visitors in the state to use the dry sand as a public recreation area is so notorious that notice of the custom . . . must be presumed.” Id., at 598, 462 P. 2d, at 678. The passage in which Thornton actually applies Blackstone’s seven-factor test contains not a single mention of the city of Cannon Beach. Id., at 595-597, 462 P. 2d, at 677.
From Thornton to McDonald to the decision below, the Supreme Court of Oregon’s vacillations on the scope of the doctrine of custom make it difficult to say how much of the coast is covered. They also reinforce a sense that the court is creating the doctrine rather than describing it.
In Thornton, the Supreme Court of Oregon appears to have misread Blackstone in applying the law of custom to the entire Oregon coast. “[C]us-toms . . . affect only the inhabitants of particular districts.” 1 W. Black
Lead Opinion
Sup. Ct. Ore. Certiorari denied.