By Nathan Hale

Law360 (July 22, 2020, 8:34 PM EDT ) Florida's Walton County has urged a federal court to toss a suit brought by a group of property owners — including former Arkansas Gov. Mike Huckabee — over an ordinance that barred the use of private beaches because of the COVID-19 pandemic, saying the since-rescinded restrictions were constitutional and reasonable.

The county argues in its motion to dismiss, which was filed late Tuesday, that the property owners' requests for declaratory judgments that the county overstepped its authority or was preempted by the state emergency orders should be thrown out as moot since it lifted the restrictions as of May 1.

The county, which is located in Florida's Panhandle, also contends that the ordinance did not amount to a compensable taking or seizure of property by the government and that the property owners were not denied due process by its implementation.

"Given the governor's executive orders and the county's emergency powers under the [State Emergency Management Act], the mere enactment of the ordinance did not [affect] a seizure of plaintiffs' property," the county said. "More importantly, any alleged 'seizure' was reasonable in light of the emergency situation posed by the global COVID-19 pandemic."

The plaintiffs, who all claim their properties extend to the mean high-water line of the Gulf of Mexico and include "dry sand beach," filed suit April 6 in Pensacola. They asked the court to throw out the Walton County Board of County Commissioners' April 2 amendment to an emergency ordinance that extended temporary pandemic restrictions on the use of county beaches to "any person."

In addition to arguing that the amended ordinance conflicted with two executive orders issued by Florida Gov. Ron DeSantis, the property owners also argued that it violated their rights under the Fourth, Fifth and Fourteenth Amendments of the U.S. Constitution, as well as their right to privacy under the Florida Constitution.

But the county argues in its motion to dismiss that the property owners have not plausibly pleaded that the county's actions amounted to a taking claim that can be brought under the Fifth Amendment.

"At most, the amended complaint alleges that the ordinance interfered with their ability to use the beach portion of their property for 29 days and that enforcing agencies encroached on their private beach during that time," the county said. "The ordinance did not authorize third parties to occupy private property, nor otherwise appropriate the property for public use."

If the ordinance is interpreted as having temporarily denied the owners use of the entirety of their properties, the state and local emergency orders, which were attached to the complaint, show that this was done pursuant to the powers conferred to the county through the State Emergency Management Act and triggered by the COVID-19 pandemic, the motion said.

"Even a regulation that temporarily denies an owner all use of their property does not necessarily constitute a taking. '[T]he county might avoid the conclusion that a taking had occurred by establishing that the denial of all use was insulated as a part of the state's authority to enact safety regulations,'" the county argued, quoting from the U.S. Supreme Court's 2002 decision in Tahoe-Sierra Preservation Counsil, Inc. v. Tahoe Planning Agency.

The county also compared the current circumstances to those considered by the U.S. Supreme Court in 1958's United States v. Central Eureka Mining Co., in which the justices found no taking had occurred when the government issued a wartime order requiring non-essential gold mines to shut down to conserve equipment and labor.

"A global pandemic would seem akin to a war in that respect, the county said. "As in Central Eureka Mining Co., the actions of Walton County in restricting the use of all beaches in the county cannot be seen as a taking within this context."

The property owners' due process claims fail, the county argued, because they received all the procedural due process they were entitled to through the county's legislative process, and the county's adoption of the ordinance was supported by the governor's emergency order, which specifically included "beach closures at the discretion of local authorities."

Additionally, the county contended that Supreme Court case law makes clear that the open beach portions of the properties are not covered by Fourth Amendment protections against unreasonable seizure of real property, and nevertheless, the alleged "seizure" was reasonable in light of the pandemic.

Outside counsel for the county on Wednesday said he had no further comment, and a county spokesman said it is county commission practice not to discuss ongoing litigation.

Counsel for the property owners did not immediately respond to a request for comment Wednesday.

The plaintiffs are represented by D. Kent Safriet, Joseph A. Brown, Edward M. Wenger and Kristen C. Diot of Hopping Green & Sams PA.

The county is represented by William G. Warner, Timothy M. Warner and Eric A. Krebs of Warner Law Firm PA.

The case is Dodero et al. v. Walton County et al., case number 3:20-cv-05358, in the U.S. District Court for the Northern District of Florida.

--Additional reporting by Carolina Bolado. Editing by Steven Edelstone.

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