Epstein on Upcoming SCOTUS Property Rights Case

When Government Takes You Hostage
Richard A. Epstein
Defining Ideas
January 2, 2013

On January 15, 2013, the United States Supreme Court will hear Koontz v. St. Johns River Water Management District, a case that comes out of Florida. At issue in the case is the longstanding conflict between the constitutional protection of property rights and the state’s desire to protect its pristine wetlands, always in short supply, from destruction by real estate development.

The current law on this thorny topic, in Florida as elsewhere, gives the state the advantage in this struggle: The state has the final authority to decide whether these wetlands should be developed. Pursuant to its statutory powers, the state can let the development proceed as planned when its effects on the wetlands are minimal. But whenever those effects are more substantial, as they always are, the state can refuse to permit the development of the land unless the landowner agrees to “mitigate” any resultant harm to the environment.

The scheme seems simple, but it is not. The facts of Koontz are typical of the herculean struggles over permits more generally. This saga began in 1994 when Koontz applied for a permit to dredge and fill with sand about 3.7 acres of a 14.2 acre parcel. Of the disputed land, 3.4 acres were undeveloped wetlands, 0.3 acres of which were adjacent uplands also protected under Florida law. For nineteen years, the two sides have struggled to determine the terms of Koontz’s mitigation obligation.

Richard A. Epstein