The State has the exclusive right to control land below the high water mark for the public benefit, and cannot permit activity that substantially impairs the public interest in marine life, water quality, or public access. The State's presumptive title applies to tidelands.
In the early 1960's, respondent McQueen purchased two non-contiguous lots located on manmade saltwater canals in the Cherry Grove section of North Myrtle Beach, South Carolina. He paid $2,500 in 1961 for a lot on 53rd Avenue and $ 1,700 in 1963 for a lot on 48th Avenue. Since then, both lots have remained unimproved. The lots surrounding McQueen's are improved and have bulkheads or retaining walls. In 1991, McQueen filed applications with petitioner Office of Ocean and Coastal Resource Management (OCRM) to build bulkheads on his lots. After an administrative delay, he reapplied in 1993 requesting permits to backfill his lots and build bulkheads. During this time, however, as per OCRM’s evaluation of the land, it was asserted that the majority of both lots had reverted to tidelands or critical area saltwater wetlands due to continuous erosion and that the proposed backfill would permanently destroy the critical area environment on these lots. Hence, in October 1994, McQueen’s permit application was denied. McQueen then commenced an action seeking compensation for a regulatory taking. The master-in-equity found that the denial of the permits deprived McQueen of all economically beneficial use of the lots and awarded him $50,000 per lot as just compensation. OCRM appealed. By a divided court, the Court of Appeals affirmed the finding of a taking because McQueen was deprived of all economically beneficial use of his property. The Court of Appeals found the evidence insufficient, however, to support the amount of compensation awarded by the master and the case was remanded. OCRM then sought a writ of certiorari.
Must a state compensate a waterfront landowner for the denial of permits to fill in at his shorefront due to a regulatory taking?
According to the Court, since the tidelands included on McQueen's lots are public trust property subject to control of the State, his ownership rights do not include the right to backfill or place bulkheads on public trust land. Because of this, the State need not compensate him for the denial of permits to do what he cannot otherwise do. Furthermore, the Court asserted that any taking McQueen suffered is not a taking effected by State regulation but by the forces of nature and McQueen's own lack of vigilance in protecting his property.