CHANGING CURRENTS AND BEACH ACCESS

Transcription

1 CHANGING CURRENTS AND BEACH ACCESS The Public Trust Doctrine and Ensuring Universal Beach Access Angela T. Howe. Esq. Legal Director Surfrider Foundation

2 BURNING QUESTIONS! Who owns America s coastlines?! How much access is the public allowed?! Does buying an expensive waterfront home guarantee privacy?! Must property owners accommodate recreationalists who walk through private land?

3 THE PUBLIC TRUST DOCTRINE The public has an inherent right of access to and along all beaches and shorelines situated below the upper reaches of the wash of the waves.! an ancient legal principle that dates back to Roman law and has been incorporated into U.S. coastal laws over the years! The idea of protecting coastal areas, including rivers, lakes, and oceans navigable waters, for the benefit of the public goes back as far as the Ch in Dynasty in China ( B.C.E.), which protected public access to the water! Originally applied to fishing, navigation & commerce but has more recently applied to recreational beach access

4 THE PUBLIC TRUST DOCTRINE CASELAW Joseph Sax discussed the community s interest in natural resources versus the private interest.! Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892) the court held that common law public trust doctrine prevented the government from alienating the public s right to the lands under navigable waters! Mono Lake California Audobon v. Superior Court 33 Cal. 3d 319 (1983) - Expanding the ancient doctrine to include recreational, ecological and aesthetic. Court decreed that Mono Lake has "public trust values" that the state has an obligation to maintain. "The public trust...is an affirmation of the duty of the state to protect the people's common heritage of streams, lakes, marshlands and tidelands."! Originally applied to fishing, navigation & commerce but has more recently applied to recreational beach access

5 THE PUBLIC TRUST DOCTRINE IN STATES Public ownership and public access to beaches based on the public trust doctrine or other common law doctrines. The public has access along some dry beaches in most states, in addition to the six shown here, where access is universal. (U.S. EPA)

6 PROGRESSIVE STATE BEACH ACCESS LAWS! Oregon Beach Bill! 1959 Texas Open Beaches Act! Hawaii " Public Access Shoreline Hawaii (PASH) v. County of Hawaii County Planning Commission, 79 Haw. 425, 903 P.2d 1246 (1995). " Requirement for vertical accessways every.25 miles (Oahu). Counties have primary duty to develop and maintain beach access. " Public right of access to and along all beaches and shorelines in the State situated below the "upper reaches of the wash of the waves." HRS Secs &

7 BEACH ACCESS: BATTLES AROUND THE NATION! Maine Beach Access Litigation " Kennebunkport " Eastport case " Secret Beach! Chicago Surfing Access compromise for seasonal access and offered free surf & beach safety clinics Surfrider promotes the rights of all recreational user groups and members of the community to enjoy coastal resources. Surfrider encourages recreational user groups to balance their interests and to work cooperatively with local residents and decision-makers to ensure maximized access for all persons.

8 BEACH ACCESS: BATTLES AROUND THE NATION! Accessways to the beach " Dana Pt Headlands " Malibu Latigo Beach " Martin s Beach

9 ! Access closed after almost 100 years open to the public! Gates, guards and signage put up in 2008! Beach access was originally for a fee, but then closed all together MARTIN S BEACH

10 MARTIN S BEACH! Community Activism! Outreach to Owner! Outreach to Public Decisionmakers! Martin s 5! Litigation as a Last Resort

11 ! Redenbacher Litigation " Property law theories MARTIN S BEACH # Tideland based public easement (CA Const X, IV) # Express dedication, PTD, use easement! Surfrider s Coastal Act Litigation Notice of Appeal 2/2015! State Legislation SB 568 (Hill)

12 BEACH ACCESS AND SEA LEVEL RISE! Some of the strongest Beach Access laws are challenged by Sea Level Rise " Texas Open Beaches Act of 1959 " Severance v. Patterson subordinated TXOBA rules in the aftermath of hurricanes, when houses end up on the beach on the West End of Galveston " Along with population increase = diminishing towel space! Climate Adapation - Incorporation of Coastal Resiliency (aka Managed Retreat) Surfrider advocates for a development setback requirements that takes into account the rate of sea level rise

13 QUESTIONS AND COMMENTS? Angela T. Howe, Esq. Legal Director Surfrider Foundation