ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OREGON.
The petition for a writ of certiorari is denied.
JUSTICE SCALIA, with whom JUSTICE O'CONNOR joins, dissenting.
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 Circuit Court of Clatsop County, alleging a taking in violation of the Fifth and Fourteenth Amendments. That court dismissed the complaint for failure to state a claim pursuant to Ore. Rule Civ. Proc. 21A(8), on the ground that under State ex rel. Thornton v. Hay, 254 Ore. 584, 462 P.2d 671 (1969), petitioners never possessed the right to obstruct public access to the dry-sand portion of the property. App. to Pet. for Cert. C-22--C-25. The Court of Appeals, 114 Ore. App. 457, 835 P.2d 940 (1992), and then the Supreme Court of Oregon, 317 Ore. 131, 854 P.2d 449 (1993), both relying on Thornton, affirmed. The landowners have petitioned this Court for writ of certiorari to the Supreme Court of Oregon. They allege an unconstitutional taking of property without just compensation, and a denial of due process of law.
In order to clarify the nature of the constitutional questions that the case presents, a brief sketch of Oregon case law involving beachfront property is necessary.
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, 254 Ore. 584, 462 P.2d 671 (1969). 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.
The court set forth what it said were the seven elements of the doctrine of custom*fn1 and concluded that "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. The court affirmed the injunction, saying that "it takes from no man anything which he has had a legitimate reason to regard as exclusively his." Id., at 599, 462 P.2d, at 678. Thus, Thornton declared as the customary law of Oregon the proposition that the public enjoys a right of recreational use of all dry-sand beach, which denies property owners development rights.
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. "There may also be [dry-sand] areas," the court said, "to which the doctrine of custom is not applicable." Ibid.*fn2 The court noted that "there [was] no testimony in this record showing customary use of the narrow beach on the bank of the cove. . . . The doctrine of custom announced in [ Thornton ] simply does not apply to this controversy. The public has no right to recreational use of the [dry-sand beach area of the cove] because there is no factual predicate for application of the doctrine." Id., at 360, 780 P.2d, at 724.
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. . . . Because 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 grounds that appeal was confined to the purely legal question of whether the complaint stated a claim under Oregon law. App. to Pet. for Cert. I-197--I-198 (Tr., Mar. 3, 1993); see also id., at I-185-I-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 Ore., at 140, 854 P.2d, at 454 (emphasis added).*fn3 The court then framed the issue as the continuing validity of Thornton in light of Lucas v. South Carolina Coastal Council, 505 U.S. , (1992). The court quoted our opinion in Lucas: "Any limitation so severe [as to prohibit all economically beneficial use of land] cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership." 317 Ore., at 142, 854 P.2d, at 456 (quoting Lucas, 505 U.S., at , (slip op., at 23-24) (emphasis added by the Oregon court). The court held that the doctrine of custom was just such a background principle of Oregon property law, and that petitioners never had the property interests that they claim were taken by respondents' decisions and regulations. 317 Ore., at 143, 854 P.2d, at 456. It then affirmed the dismissal.
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 asserting retroactively that the property it has taken never existed at all." Hughes v. Washington, 389 U.S. 290, 296-297 (1967) (Stewart, J., concurring). No more by judicial decree than by legislative fiat may a State transform private property into public property without compensation. Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164 (1980). See also Lucas, 505 U.S., at , (slip op., at 26). Since opening private property to public use constitutes a taking, see Nollan v. California Coastal Comm'n, 483 U.S. 825, 831 (1987); Kaiser Aetna v. United States, 444 U.S. 164, 178 (1979), if it cannot fairly be said that an Oregon doctrine of custom deprived Cannon Beach property owners of their rights to exclude others from the dry sand, then the decision now before us has effected an uncompensated taking.
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 land-grab (if there is one) may run the entire length of the Oregon coast.*fn4 It is by no means clear that the facts -- either as to the entire Oregon coast, or as to the small segment at issue here -- meet the requirements for the English doctrine of custom. The requirements set forth by Blackstone included, inter alia, that the public right of access be exercised without interruption, and that the custom be obligatory, i.e., in the present context that it not be left to the option of each landowner whether he will recognize the public's right to go on the dry-sand area for recreational purposes. In Thornton, however, the Supreme Court of Oregon determined the historical existence of these fact-intensive criteria (as well as five others) in a discussion that took less than one full page of the Pacific ...