As Americans flock to the beaches this summer, their toes are digging into some of America’s most hotly contested real estate.
It has not always been so. In the mid-twentieth century, when America’s population was smaller and the coast was still something of a border in many states, absentee and laissez-faire coastal landowners tolerated people crossing their beachfront property. Now, however, the coast has filled in. Landlords are much more inclined to seek to exclude an ever-growing population of bathers seeking access to fewer and fewer beaches.
On most American coastlines, the public has an age-old right to “lateral” access. This means that people can move along the beach along the wet sand between high tide and low tide – an area that is generally owned by the state. The control of riparian owners generally stops at the high tide line or, in very rare cases, at the low tide line.
But as climate change raises sea levels, landlords are trying to harden their shorelines with levees and other types of armor, squeezing the sandy beach and the public into a shrunken and diminished space.
As director of the University of Florida Law School Conservation Clinic and the Florida Sea Grant Legal Program, and as someone who grew up with sand between their toes, I studied law and beach politics for most of my career. In my view, the collision between rising seas and coastal development – known as “coastal squeeze” – now poses an existential threat to beaches and the public’s ability to reach them.
Photos: Building collapse in Florida
The beach as a public good
Beachfront property law evolved from ideas that date back to ancient Rome. The Romans viewed the beach as “public dominion,” summed up in an oft-quoted quote from Roman law: “By the law of nature these things are common to all mankind; the air, running water, the sea and therefore the shores of the sea.
Judges in medieval England turned this idea into legal theory known as the “doctrine of public trust” – the idea that certain resources should be preserved for all to use. The United States inherited this concept.
Most states place the boundary between public and private property at the mean high tide line, an average tide over an astronomical epoch of 19 years. This means that at some point in the daily tidal cycle there is usually a public beach to walk on, although it is wet and sometimes narrow. In states like Maine that set the boundary at mean low tide, you have to be prepared to wade in.
Early beach access laws in coastal states were largely designed to ensure that everyday activities such as fishing and gathering seaweed for fertilizer could take place regardless of who owned the beach. beach frontage. Increasingly, however, public recreation has become the primary use of beaches, and state laws have evolved to recognize this change.
For example, in 1984, the New Jersey Supreme Court expanded the scope of the public trust doctrine beyond the tide line to include recreational use of the dry sand beach. In a pioneering move, Texas codified its common law in 1959 by enacting the Open Beaches Act, which provides that the sandy beach up to the vegetation line is subject to an easement in favor of the public.
Additionally, Texas allows this easement to “roll” as the coastline migrates inland, which is increasingly likely in a time of rising seas. Recent litigation and amendments to the law have changed its application somewhat, but the basic principle of public rights to private dry sand beaches still applies.
Most states that grant public access to dry sand on otherwise private property do so under a legal principle known as customary use rights. These rights evolved in feudal England to grant landless villagers access to the lands of the lord of the manor for civic activities carried out from “time immemorial”, such as the ritual pole dance.
Florida has more sandy beaches than any other state, a year-round climate to enjoy them, and a seemingly limitless appetite for growth, making beach access a chronic flashpoint.
Along Florida’s Panhandle, pitched battles have erupted since 2016, with beachfront owners and private resorts asserting their private property rights to the dry sand beach and calling on sheriffs to evict residents. When bathers responded by asserting their customary use rights, Walton County – no Liberal stronghold – stood by them, passing the local equivalent of a customary use law.
What about adding sand?
Erosion is both an enemy and a potential savior of beach access. As rising seas erode beaches, pressure to harden shorelines increases. But bank armoring can actually increase erosion by interfering with the natural supply of sand. The addition of additional seawalls therefore makes it increasingly likely that in many developed areas the dry sandy beach will all but disappear. And what was once the public wet sand beach – the area between average high and low tide – will become two horizontal lines on a vertical seawall.
An alternative is to add more sand. Congress authorizes and funds the US Army Corps of Engineers to restore beaches with sand pumped from offshore or trucked in from ancient inland dunes. States usually have to match these funds, and beachfront property owners sometimes participate collectively.
This requirement, along with more murky property rights issues, has led landowners in Walton County, Florida to fight a beach nourishment project that would have protected their property from erosion. They took the case to the United States Supreme Court and lost.
Resupplying the beaches is also a temporary solution. Good quality and easily accessible offshore sand reserves are already depleted in some areas. And accelerating sea level rise could exceed readily available sand at some point in the future. Wedged between condos and coral reefs, South Florida’s beaches are particularly at risk, leading to desperate proposals including the idea of crushing glass to create beach sand.
This article was written by Thomas Ankerson, Professor of Legal Skills and Director of the Conservation Clinic at the University of Florida School of Law, for The Conversation. It is republished here with permission.