Once the definition of littoral rights is fixed, the next question is how the federal constitutional protection should apply to this form of private property.
The same problem cannot arise for littoral rights, but variations on the theme can.
Justice Scalia's position on judicial takings is especially strong in light of the previous discussion, where it was assumed that the creation of these rights in the first instance did not follow from any judicial decision whatsoever, but from the long-standing common understanding of how alluvial and avulsive changes impacted the riparian or littoral rights.
Right off the bat, it is clear that he misapprehends how these rules on littoral rights should work.
Instead, contact is ancillary to the littoral right of access to the water.
On balance, the upland owner's littoral right of access is preserved under the act.
35) Likewise, as far as he was concerned, Sand Key plainly said the common law littoral right to access "includes" the right to have the property's contact with the water remain intact.