No Emergency Exception to the Takings Clause: Eleventh Circuit Holds Pandemic Closure of Private Beaches Is a Per Se Physical Taking Requiring Just Compensation

Introduction

This published decision from the United States Court of Appeals for the Eleventh Circuit addresses whether a county’s pandemic-era ordinance, which barred all access to privately owned beaches and authorized law enforcement to enforce that ban on private land, effected a compensable “taking” under the Fifth Amendment. Plaintiffs—beachfront landowners in Walton County, Florida—challenged Ordinance 2020-09, which closed all beaches (public and private) and made it a crime for anyone, including owners, to enter or remain on the “soft sandy” portions of their parcels. The County vigorously enforced the ordinance by patrolling, stationing vehicles, and threatening arrest on private land.

The case presents two key issues: (1) whether the landowners’ requests for prospective relief were mooted by the ordinance’s expiration and the County’s sustained reopening; and (2) whether the ordinance and its enforcement amounted to a per se physical taking requiring just compensation, notwithstanding the COVID-19 emergency. Writing for a unanimous panel, Judge Lagoa affirms the dismissal of prospective relief as moot, but reverses on the Takings Clause, holding that Walton County committed a physical appropriation—there is no COVID exception to the Fifth Amendment’s just-compensation command.

Summary of the Opinion

Mootness: The court affirms dismissal of the landowners’ claims for declaratory and injunctive relief as moot. Ordinance 2020-09 expired by its sunset clause in April 2020; the County reopened both public and private beaches and has consistently maintained that policy for five years. Applying the Eleventh Circuit’s voluntary cessation framework, the court finds it “absolutely clear” the challenged conduct is not reasonably expected to recur.
Takings Clause: The court holds that the ordinance, which barred owners from entering and remaining on their own land while County officers physically entered, patrolled, parked, and excluded owners under threat of arrest, effected a per se physical taking. The right to exclude, possess, and use was appropriated by the County, triggering a categorical duty to pay just compensation.
No Pandemic Exception: Citing Cedar Point Nursery v. Hassid, the court rejects the district court’s reliance on Jacobson v. Massachusetts. Emergencies do not suspend the Takings Clause. While government may pursue valid public purposes, it must pay for what it takes.
Remand: The court remands for entry of partial summary judgment for the landowners on the Takings Clause and for the district court to determine the amount of “just compensation.”

Case Background

In March–April 2020, after the Florida Governor’s orders authorized local discretion on beach closures (while deeming certain outdoor recreational activities “essential”), the Walton County Board initially closed only public beaches (Ordinance 2020-08). On April 2, 2020, the Board enacted Ordinance 2020-09, closing all beaches in Walton County—public and private—and criminalizing entry and presence on beaches as defined by County Code (“the soft sandy portion of land lying seaward of the seawall or the line of permanent dune vegetation”). The ordinance contained a sunset date (April 30, 2020). During its effect, County officers used private beaches as patrol routes, parked on private sand to deter entry, and threatened owners and their family members with arrest if they remained on their own land.

Plaintiffs (co-trustees, individuals, and entities) sued under 42 U.S.C. § 1983, asserting a Takings Clause claim, Florida constitutional privacy claims, and federal due process and Fourth Amendment claims, among others. The district court denied preliminary relief, then later dismissed claims for prospective relief as moot when the ordinance expired and entered summary judgment for the County on damages, holding there was neither a per se physical taking nor a regulatory taking. The Eleventh Circuit granted review.

Detailed Analysis

Precedents Cited and Their Influence

The panel’s takings analysis is deeply anchored in Supreme Court doctrine distinguishing physical from regulatory takings and emphasizing the primacy of the right to exclude:

Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021): Central to the opinion. Cedar Point holds that a government-authorized physical invasion—there, union organizers’ access to private agricultural land for parts of the year—is a per se physical taking requiring just compensation, even if limited in time. The Eleventh Circuit applies Cedar Point’s core principle: the “essential question” is not whether the government acted through regulation, but whether it physically appropriated property (by taking for itself the rights to possess, use, and exclude) as opposed to merely restricting how an owner may use property the owner still possesses. The court also relies on Cedar Point’s clarification that the temporariness of an appropriation affects only the amount of compensation, not liability.
United States v. Causby, 328 U.S. 256 (1946): Demonstrates that physical touching of soil is not necessary for a taking; low overflights appropriating immediate airspace deprived owners of full enjoyment. The Eleventh Circuit analogizes: here, the County’s repeated occupation and exclusion on private sand was “as much an appropriation” as conventional entry.
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982): A small, permanent cable installation is a per se taking; “breadbox” size does not negate liability. The court uses Loretto to reject the district court’s reliance on the limited spatial scope or partial nature of the invasion; taking part of a parcel still triggers categorical compensation.
Horne v. Department of Agriculture, 576 U.S. 350 (2015): Even partial appropriations (e.g., a portion of a raisin crop) are per se takings. Supports the court’s reasoning that appropriations of interests less than the whole still require compensation.
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002): Distinguishes regulatory restrictions (subject to Penn Central) from physical appropriations (categorical). Also underscores that partial or temporary government occupation can be compensable, with duration affecting amount.
Nollan v. California Coastal Commission, 483 U.S. 825 (1987): Quoted in Cedar Point and here to illustrate that characterizing a compelled access right as a mere “use restriction” misconceives an appropriation of the right to exclude.
Kaiser Aetna v. United States, 444 U.S. 164 (1979): The right to exclude is “one of the most essential sticks” in the property bundle; conditioning a permit on public access can effect a taking.
General Motors, 323 U.S. 373 (1945); United States v. Petty Motor Co., 327 U.S. 372 (1946); Kimball Laundry Co. v. United States, 338 U.S. 1 (1949); United States v. Pewee Coal Co., 341 U.S. 114 (1951); United States v. Dickinson, 331 U.S. 745 (1947): These cases collectively inform how courts assess compensation for temporary takings and leasehold-type appropriations—relevant to the remand on just compensation.
Arkansas Game & Fish Commission v. United States, 568 U.S. 23 (2012): The district court read this case to suggest that temporary invasions are not per se takings. The Eleventh Circuit counters, invoking Cedar Point’s clarification that Arkansas Game & Fish applied trespass-vs.-taking principles in the flooding context and does not displace the rule that temporary appropriations are takings.
Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978); Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922); Yee v. City of Escondido, 503 U.S. 519 (1992): The regulatory takings framework applies to “use” restrictions, not to physical appropriations. Because the County’s ordinance appropriated possessory and exclusion rights, Penn Central has “no place.”
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005); S. Grande View Dev. Co., Inc. v. City of Alabaster, 1 F.4th 1299 (11th Cir. 2021): Reinforce that the validity of the public purpose is distinct from the obligation to pay compensation once a taking is established.
Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020) (Gorsuch, J., concurring); Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603 (2020) (Alito, J., dissenting): Emphasize that “usual constitutional standards” continue to govern during emergencies; the court deploys these authorities to reject a special pandemic standard for takings.
Mootness and Voluntary Cessation: Murthy v. Missouri, 144 S. Ct. 1972 (2024); FBI v. Fikre, 601 U.S. 234 (2024); Already, LLC v. Nike, 568 U.S. 85 (2013); Friends of the Earth v. Laidlaw, 528 U.S. 167 (2000); United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199 (1968); and Eleventh Circuit cases Schultz v. Alabama, 42 F.4th 1298 (2022); Djadju v. Vega, 32 F.4th 1102 (2022); Keohane v. Florida DOC, 952 F.3d 1257 (2020). These frame the stringent standard for mooting a case via voluntary cessation and guide the application of three factors (deliberation, unambiguous termination, and consistent maintenance of the new policy).

Legal Reasoning

The analytical fulcrum is the per se distinction between “physical appropriation” and “use restriction.” The court begins with the Takings Clause text—“private property” shall not “be taken” without just compensation—and the “bundle of rights” that constitute property: to possess, use, exclude, and dispose. The right to exclude is “one of the most treasured.”

Under Cedar Point, the dispositive question is whether the government physically appropriated property for itself or for others, or instead merely restricted how the owner could use property the owner still possessed. Walton County’s ordinance, coupled with its enforcement, crossed the line into appropriation:

Owner exclusion: Owners were categorically barred from entering and remaining on their own sand. That is not a mere functional limitation on use; it is the removal of possessory control.
Government occupation and control: Officers “used” private beaches as a patrol highway, parked vehicles at access points, and compelled owners and family members to leave under threat of arrest. The County assumed the core sticks in the bundle—possession, control, and exclusion—over the affected portions of the parcels.
Partial and temporary nature is immaterial to liability: Whether the appropriation covered only the “beach” portion of a parcel or lasted less than a month goes to the measure of compensation, not whether a taking occurred. Loretto, Horne, and Cedar Point foreclose de minimis and temporariness defenses at the liability stage.
Not saved by background-access exceptions: Although longstanding background principles (e.g., entry to avert imminent disaster, certain inspection regimes consistent with the Fourth Amendment and common law privileges) limit the absolute scope of the right to exclude, the County’s round-the-clock enforcement presence and systematic exclusion of owners at threat of arrest were far beyond such narrow, recognized exceptions.

The court rejects the district court’s characterization of the ordinance as a “use” restriction. A rule that allows a government to bar owners from their land while it occupies and polices that land is quintessential appropriation. Under Cedar Point, labeling such a regime as “regulation” cannot alter the constitutional analysis.

On Jacobson and emergencies, the court is categorical: there is no COVID exception to the Takings Clause. Even when government acts for valid public purposes in a public-health emergency, the Constitution still requires compensation for physical appropriations. Purpose answers “why” the government acted; the Takings Clause answers “what must follow” if a taking occurred—payment of just compensation.

On mootness, the court applies the Eleventh Circuit’s three-factor voluntary cessation test and broader Supreme Court guidance. The ordinance expired by its own terms in April 2020; the County contemporaneously reopened public beaches and has for five years maintained an open-beach policy (public and private). Against this consistent history, plaintiffs’ references to pandemic policy changes elsewhere were too speculative to defeat mootness.

Impact and Implications

Emergency measures and takings liability: Local and state governments should expect that emergency orders which physically dispossess owners or appropriate access/exclusion rights—even for limited periods—will be treated as per se physical takings. Policymakers must plan for compensation if such measures are necessary.
Designing public-health closures: To avoid per se takings, jurisdictions can:
- Allow owners continued access to their own property (for example, owner/resident passes, time/place manner limits consistent with distancing).
- Impose neutral use restrictions (capacity limits, time limits, conduct rules) without dispossessing owners or granting public or government access rights beyond background exceptions.
- Rely on signage and non-occupational enforcement techniques that do not require officers to occupy private land or exclude owners from their land.
Coastal property regimes: The case underscores the constitutional difference between closing public beaches and banning owners from private beaches. Where private title extends across the dry sand, a government-wide, categorical no-entry rule combined with on-site occupation and exclusion is an appropriation.
Temporary takings compensation: On remand, the district court will likely draw on General Motors, Kimball Laundry, and related cases to calculate the fair rental value of the appropriated possessory interest for the period of deprivation, potentially inclusive of consequential losses directly attributable to the taking and appropriate interest. Expect parcel-by-parcel differences, especially for owners whose entire lots fell within the defined “beach” versus those with only partial beach areas.
Litigation posture elsewhere: While binding within the Eleventh Circuit (FL, GA, AL), the decision is likely to be persuasive nationally, given its reliance on Cedar Point and the Supreme Court’s emergency-era insistence on “our usual constitutional standards.” Jurisdictions that implemented similar owner-exclusion-and-occupation regimes during COVID-19 may face renewed or analogous claims for compensation.
Boundary of the holding: The opinion does not suggest that all pandemic restrictions are takings. Pure use regulations that restrict operations while leaving owners in possession, without compelled physical access for others, remain subject to Penn Central. The line is crossed where the government appropriates the rights to possess and exclude (or grants such rights to others).

Complex Concepts Simplified

Per se physical taking: When the government (or those it authorizes) physically occupies private property or takes core ownership rights—especially the right to exclude—it must pay compensation. Liability is categorical; the only open question is the amount of compensation.
Regulatory taking: Government limits how you may use property you still possess. These are evaluated under a multi-factor, case-specific test (Penn Central) and are harder to prove.
Right to exclude: The owner’s power to keep others off the property. Courts treat a government’s abrogation of this right as a hallmark of a physical taking.
Temporary taking: A taking that lasts for a limited time (days, weeks, months). It is still a taking; the duration affects compensation (often measured like a rental or leasehold value).
Background exceptions: Narrow, longstanding rules—such as entry to avert imminent public disaster or compliance with valid inspection regimes consistent with the Fourth Amendment—limit the right to exclude. Routine patrol occupation and categorical owner exclusion go beyond these exceptions.
Voluntary cessation and mootness: When a defendant stops the challenged conduct during litigation, the case is moot only if it is absolutely clear the conduct will not recur. Courts look for deliberate change, unambiguous termination, and consistent adherence to the new regime.
Public use vs. just compensation: A valid public purpose does not defeat a takings claim; it triggers the duty to pay. The Takings Clause presupposes legitimate action and asks whether compensation is owed.

Key Takeaways

There is no emergency or COVID exception to the Takings Clause. When government appropriates possessory and exclusion rights in private land—even briefly—it must pay just compensation.
Labeling an action as a “regulation” does not transform a physical appropriation into a mere use restriction. Cedar Point’s per se rule governs where the government authorizes entry, occupies, or excludes the owner.
Partial and temporary appropriations still trigger liability; duration and scope affect the amount owed, not whether a taking occurred.
Prospective relief challenges to time-limited emergency measures can become moot, especially where a sunset clause is honored and the government consistently maintains the new, less-restrictive policy over time.
On remand, compensation for the temporary taking will likely be calculated by reference to fair rental value of the appropriated interests, with parcel-specific variations.

Conclusion

Lionel Alford v. Walton County is a consequential application—and extension—of modern takings doctrine into the context of pandemic emergency measures. The Eleventh Circuit draws a bright line grounded in Cedar Point: when the government bars owners from their own land and physically occupies that land to enforce the exclusion, it has effected a per se physical taking. That the appropriation served an emergency public-health purpose and lasted less than a month does not diminish the constitutional obligation: the government must pay for what it takes. Going forward, this opinion will shape how governments craft time-sensitive public-safety orders, encouraging measures that avoid dispossessing owners where possible and prompting budgetary planning for compensation when temporary appropriations are truly necessary.