Surfrider Foundation fights for the protection and preservation of coastal marine life by advocating for a halt in harmful practices, such as Once-Through Cooling ("OTC"), an obsolete technology employed by some coastal power plants. Through Surfrider Foundation's Know Your H2O program, Surfrider strives to explain the connection between the environmental degradation of our coasts and our outdated water management technologies. A major part of this fight is the opposition to obsolete once-through cooling and advocating for better technologies, such as closed-cycle cooling for power plants.
On November 22, 2010, Surfrider Foundation, Riverkeeper and other environmental organizations signed a settlement agreement with the Environmental Protection Agency ("EPA") that resolves two lawsuits brought against the EPA in 1993 and 2006 addressing the agency’s failure to issue regulations implementing Section 316(b) of the Clean Water Act. This section of the Act requires power plant operators and other large industrial water users to employ the “best technology available” for minimizing the adverse environmental impact of their operations on aquatic ecosystems. Currently, cooling water intakes at hundreds of facilities across the country take in huge volumes of water from vital ecosystems, resulting in the destruction of huge numbers of fish and other aquatic species at all life stages from being “impinged” against intake screens or “entrained” through the facility cooling system. The harmful impacts from once-through cooling has led to destabilized marine and freshwater ecosystems. For example, the 2007 Riverkeeper Report on Entrainment and Impingement at Indian Point focuses on the severe impacts caused by Indian Point’s cooling water intake and thermal discharge on Hudson fisheries. The number of fish and other marine life that could be saved each year by stronger EPA regulations on cooling water intakes is estimated to be in the billions.
The settlement requires EPA to draft new regulations. The settlement does not go so far as to dictate the content of the new EPA regulations, but does require that the rule promulgations abide by the following schedule:
Proposed regulations due: March 14, 2011
Final action due: July 27, 2012
In addition, the settlement contains the following key provisions:
• In exchange for EPA’s commitment to issue new regulations, the Plaintiffs agreed to dismiss both cases, but retained the right to reopen the 1993 lawsuit if the EPA misses either deadline.
• EPA will solicit public comment on whether to subject the cooling water intakes at these facilities to national performance standards.
• EPA will keep Plaintiffs informed of key milestones throughout the rulemaking process. Senior EPA staff will meet with Plaintiffs if milestones are missed by more than 10 days.
Plaintiffs intend to provide input to EPA throughout the public process to ensure that new regulations will result in long-overdue requirements for existing power plants and other facilities that significantly improve environmental protection. Modernizing cooling water intakes is an important part of the larger effort to transition to a sustainable energy supply that does not degrade our coasts.
To learn more about Surfrider Foundation's efforts on Once-Through Cooling, you can click here.
Friday, December 17, 2010
Monday, November 8, 2010
Texas Open Beaches - The TX Supreme Court Refuses to 'Roll with It' in West Beach, Galveston
The Texas Supreme Court handed down a disappointing ruling on Friday, which only served to muddle the established case law with regard to beach access in Texas and the interpretation of the Texas Open Beaches Act. The recent majority opinion and dissenting opinion in Severance v. Patterson are discussed below.
The case centers around a California resident who bought rental property in Galveston, Texas. The purchaser, Carol Severance, received a disclosure notice explaining that the property may become located on a public beach due to natural processes and that the State could sue to have her forcibly remove any structures that come to be located on a public beach, under the Texas Open Beaches Act. See TEX. NAT. RES. CODE § 61.025; TEX CONST. Art. 1 § 33. As was arguably foreseeable along that part of the Texas coast at some point, Hurricane Rita came in 2005 and shifted the mean high tide line and vegetation line further inland. In 2006, the Texas General Land Office, under Texas Land Commissioner Jerry Patterson, determined that Severance’s house was entirely within the public beach.
The Decision's Findings
The majority held that easements do not move onto previously unencumbered private beachfront property when avulsive events (which are sudden occurrences, which, in this case, include severe storms and hurricanes) cause dramatic changes in the coastline. Specifically, here in Galveston where there is a Republic’s land grant, the history of public enjoyment of beaches does not extend to use of West Beach properties, which were formerly private property and not impressed with pre-existing public easements.
The conclusion of the 6 majority justices states:
The Decision Was Limited
The majority limited its decision in this case not only to opine on how major storms affect public easements, but also only as to how they are affected in this certain area of West Beach, Galveston.
As the opinion states in regards to avulsion:
And with regards to the geographic limitations of the opinion:
The court goes on: "We have determined that the history of land ownership in West Beach refutes the existence of a public easement by virtue of continuous right “in the public since time immemorial, as recognized in law and custom,” TEX. NAT. RES. CODE § 61.001(8) at p.28. And at page 31, the opinion reads: "the original patent of Galveston’s West Beach from the Republic to Jones and Hall refutes the existence of custom."
The Strong Dissent
The dissent, by Justice Medina, joined by Justice Lehrmann, aptly points out the flaws in the majority’s logic and reading of the case law. They argue that the natural laws of the coast have compelled Texas common law to recognize rolling easements, even for storms. The wise dissent recognizes the need for a more proactive approach to anticipate storms and coastal movement without taking on a large burden for the State (which is currently in debt) or the people of the state that want to enjoy the natural beauty and resource of the coastline. The dissent focuses on the intent of the Texas Open Beaches Act, a comprehensive reading of the vast Texas court case law on the subject and incorporates a forward-thinking viewpoint in terms of public policy.
Specifically addressing the West Beach Area, the dissent notes:
In strong defense of the rolling easement doctrine in Texas, the dissenters point out the following case law chain:
Finally, the dissent offers a masterful understanding of the Texas Open Beaches Act through their well stated summary:
Shoreline Turbidity
The Severance v. Patterson Texas Supreme Court decision muddied the waters for the interpretation of the Texas Open Beaches Act, which could lead to more litigation due to the now conflicting case law in Texas and questions left unanswered, such as the contractual obligations of shoreline property owners who have been given notice of the shifting shoreline and the nuisance cause of action for scenarios concerning structures on the beach. Sellers of property on or near the coastline are required to include in the sales contract a “Disclosure Notice Concerning Legal and Economic Risks of Purchasing Coastal Real Property Near a Beach.” TEX. NAT. RES. CODE § 61.025(a). The notice specifically warns that "if you own a structure located on coastal real property near a gulf coast beach, it may come to be located on the public beach because of coastal erosion and storm events, and that "[o]wners of structures erected seaward of the vegetation line (or other applicable easement boundary) or that become seaward of the vegetation line as a result of natural processes such as shoreline erosion are subject to a lawsuit by the State of Texas to remove the structures." It is not state action that subjects beachfront property to a new easement after a storm but rather a force majeure. The majority opinion would have the state internalize the cost of poorly planned coastal development.
The Dissent points out:
According to the Houston Chronicle report of the decision: "Justice David Medina, who wrote the dissent, argued that the court's vague distinction between gradual and sudden changes to the Texas coast jeopardizes the public's right to open beaches, 'recognized over the past 200 years, and threatens to embroil the state in beach-front litigation for the next 200 years.'" In a game of semantics, the majority opinion says that an easement can be dynamic but not rolling. Confusingly, the majority opinion for the Court seems to say that the public easement on the beach does not automatically “roll” with the changing coast, BUT is expected to change with the dynamic shoreline:
The dissenting opinion does address Texas nuisance law, whereas the majority opinion admittedly does not. In nuisance law, property owners may not use their property in a way that unreasonably interferes with the property rights of others. As pointed out by the dissent, "an action that does not begin as a nuisance may nevertheless become a nuisance due to changing circumstances. See Atlas Chem. Indus., Inc. v. Anderson, 524 S.W.2d 681, 685–86 (Tex. 1975) (finding that heavy rains causing previously discharged pollutants from upstream manufacturing plant to spread more broadly across downstream land to be a nuisance)."
Rolling On
Surfrider Foundation will continue to work for strong public beach access in the State of Texas, regardless of this enigmatic decision. It is in the best interest of Texans across the state and visitors to the Texas coast to push for proactive and forward-thinking coastal planning, such as with the Erosion Response Plans adopted by localities. As is encouraged by the General Land Office, these plans should incorporate coastal development guidelines that take into account any gradual erosion AND anticipated avulsive events, such as hurricanes.
As for the Severance case, the suit was initially filed in federal district court, which dismissed the case. The U.S. Court of Appeals for the Fifth Circuit affirmed the lower court's dismissal but sent some questions to the Texas Supreme Court for answers, prompting Friday's ruling. (Surfrider Foundation issued an amicus brief to the Texas Supreme Court in support of full and fair beach access.) Unless the Texas Attorney General seeks a rehearing, the decision will be certified to Fifth Circuit for a supplemental opinion.
The case centers around a California resident who bought rental property in Galveston, Texas. The purchaser, Carol Severance, received a disclosure notice explaining that the property may become located on a public beach due to natural processes and that the State could sue to have her forcibly remove any structures that come to be located on a public beach, under the Texas Open Beaches Act. See TEX. NAT. RES. CODE § 61.025; TEX CONST. Art. 1 § 33. As was arguably foreseeable along that part of the Texas coast at some point, Hurricane Rita came in 2005 and shifted the mean high tide line and vegetation line further inland. In 2006, the Texas General Land Office, under Texas Land Commissioner Jerry Patterson, determined that Severance’s house was entirely within the public beach.
The Decision's Findings
The majority held that easements do not move onto previously unencumbered private beachfront property when avulsive events (which are sudden occurrences, which, in this case, include severe storms and hurricanes) cause dramatic changes in the coastline. Specifically, here in Galveston where there is a Republic’s land grant, the history of public enjoyment of beaches does not extend to use of West Beach properties, which were formerly private property and not impressed with pre-existing public easements.
The conclusion of the 6 majority justices states:
“Land patents from the Republic of Texas in 1840, affirmed by legislation in the new State, conveyed the State’s title in West Galveston Island to private parties and reserved no ownership interests or rights to public use in Galveston’s West Beach. Accordingly, there are no inherent limitations on title or continuous rights in the public since time immemorial that serve as a basis for engrafting public easements for use of private West Beach property. Although existing public easements in the dry beach of Galveston’s West Beach are dynamic, as natural forces cause the vegetation and the mean high tide lines to move gradually and imperceptibly, these easements does [sic] not migrate or roll landward to encumber other parts of the parcel or new parcels as a result of avulsive events. New public easements on the adjoining private properties may be established if proven pursuant to the Open Beach Act or the common law"at p.32.
The Decision Was Limited
The majority limited its decision in this case not only to opine on how major storms affect public easements, but also only as to how they are affected in this certain area of West Beach, Galveston.
As the opinion states in regards to avulsion:
"Courts generally adhere to the principle that littoral property owners gain or lose land that is gradually or imperceptibly added to or taken away from their banks or shores through erosion, the wearing away of land, and accretion, the enlargement of the land. Id. at 952. Avulsion, as derived from English common law, is the sudden and perceptible change in land and is said not to divest an owner of title. Id. We have never applied the avulsion doctrine to upset the mean high tide line boundary as established by Luttes, 324 S.W.2d at 191." at p.22.
And with regards to the geographic limitations of the opinion:
"There is no support presented for the [the easement] that, during the time of the Republic of Texas or at the inception of our State, the State reserved the oceanfront for public use. In fact, as discussed above, the Texas Legislature expressly disclaimed any interest in title obtained from the Jones and Hall Grant after our State was admitted to the Union...On this issue of first impression, we hold that Texas does not recognize a 'rolling' easement on Galveston’s West Beach…The State, as always, may act within a valid exercise of police power to impose reasonable regulations on coastal property or prove the existence of an easement for public use, consistent with the Texas Constitution and real property law” at pp. 20 & 25.
The court goes on: "We have determined that the history of land ownership in West Beach refutes the existence of a public easement by virtue of continuous right “in the public since time immemorial, as recognized in law and custom,” TEX. NAT. RES. CODE § 61.001(8) at p.28. And at page 31, the opinion reads: "the original patent of Galveston’s West Beach from the Republic to Jones and Hall refutes the existence of custom."
The Strong Dissent
The dissent, by Justice Medina, joined by Justice Lehrmann, aptly points out the flaws in the majority’s logic and reading of the case law. They argue that the natural laws of the coast have compelled Texas common law to recognize rolling easements, even for storms. The wise dissent recognizes the need for a more proactive approach to anticipate storms and coastal movement without taking on a large burden for the State (which is currently in debt) or the people of the state that want to enjoy the natural beauty and resource of the coastline. The dissent focuses on the intent of the Texas Open Beaches Act, a comprehensive reading of the vast Texas court case law on the subject and incorporates a forward-thinking viewpoint in terms of public policy.
Specifically addressing the West Beach Area, the dissent notes:
"Through shoreline erosion, hurricanes, and tropical storms, these lines are constantly moving both inland and seaward. In the West Bay system, whence this litigation arose, forty-eight percent of the shoreline is retreating, forty-seven percent is stable and six percent is advancing, at an average rate of -2.9 feet per year.8 The beaches on west Galveston Island, where Severance’s property is located, have even higher retreat rates (a loss of over seven feet per year) because of their exposure to wind and waves. Natural erosion from waves and currents causes an overall shoreline retreat for the entire Texas coast." dissent at p.4.
In strong defense of the rolling easement doctrine in Texas, the dissenters point out the following case law chain:
"See Feinman, 717 S.W.2d at 111 (finding that rolling easement shifted after Hurricane Alicia moved the vegetation line landward causing homes to be seaward of vegetation line and subject to removal under OBA); Matcha, 711 S.W.2d at 98–100 (finding public easement shifts with natural movements of the beach); Arrington v. Tex. Gen. Land Office, 38 S.W.3d at 766 (affirming summary judgment for Land Office because once public easement is established “it is implied that the easement moves up or back to each new vegetation line”); , 767 S.W.2d at 958 (affirming that the “easement migrates and moves . . . with the natural movements of the natural line of vegetation and the line of mean low tide”); Moody, 593 S.W.2d at 379 (recognizing that the boundary lines shift just like navigable rivers but can “be determined at any given point of time”)
. See also Mikeska v. City of Galveston, 451 F.3d 376, 378 (5th Cir. 2006) (recognizing public beach easement’s “natural demarcation lines are not static” but rather “change with their physical counterparts”); Hirtz v. Texas, 974 F.2d 663, 664 (5th Cir. 1992) (recognizing location of public beach easement “shifts as the vegetation line shifts”)." Dissent at p.11.
Finally, the dissent offers a masterful understanding of the Texas Open Beaches Act through their well stated summary:
"The OBA recognizes the dynamic nature of beach boundaries by defining the public beach by reference to the vegetation line and tide lines, which shift with the movements of the ocean, whether those movements are gradual from erosion or dramatic from storm events. Requiring that existing easements be re-established after every hurricane season defeats the purpose of the OBA: to maintain public beach access." Dissent at p. 19
Shoreline Turbidity
The Severance v. Patterson Texas Supreme Court decision muddied the waters for the interpretation of the Texas Open Beaches Act, which could lead to more litigation due to the now conflicting case law in Texas and questions left unanswered, such as the contractual obligations of shoreline property owners who have been given notice of the shifting shoreline and the nuisance cause of action for scenarios concerning structures on the beach. Sellers of property on or near the coastline are required to include in the sales contract a “Disclosure Notice Concerning Legal and Economic Risks of Purchasing Coastal Real Property Near a Beach.” TEX. NAT. RES. CODE § 61.025(a). The notice specifically warns that "if you own a structure located on coastal real property near a gulf coast beach, it may come to be located on the public beach because of coastal erosion and storm events, and that "[o]wners of structures erected seaward of the vegetation line (or other applicable easement boundary) or that become seaward of the vegetation line as a result of natural processes such as shoreline erosion are subject to a lawsuit by the State of Texas to remove the structures." It is not state action that subjects beachfront property to a new easement after a storm but rather a force majeure. The majority opinion would have the state internalize the cost of poorly planned coastal development.
The Dissent points out:
"The state is not responsible for the ocean’s movement and therefore owes no compensation when enforcing this existing easement. Because the Court requires the state to re-establish its easement after avulsive events and to pay landowners for risks they have voluntarily assumed, I must dissent. I would instead follow the constitution and the long-standing public policy of this state and hold that the beaches of Texas are, and forever will be, open to the public." Dissent at p. 19
According to the Houston Chronicle report of the decision: "Justice David Medina, who wrote the dissent, argued that the court's vague distinction between gradual and sudden changes to the Texas coast jeopardizes the public's right to open beaches, 'recognized over the past 200 years, and threatens to embroil the state in beach-front litigation for the next 200 years.'" In a game of semantics, the majority opinion says that an easement can be dynamic but not rolling. Confusingly, the majority opinion for the Court seems to say that the public easement on the beach does not automatically “roll” with the changing coast, BUT is expected to change with the dynamic shoreline:
“While the boundaries of easements on the beach are necessarily dynamic due to the composition of the beach and its constantly changing boundaries, easements for public use of privately owned dry beach do not necessarily burden the area between the mean high tide and vegetation lines when the land originally burdened by the easement becomes submerged by the ocean.” at p. 21
The dissenting opinion does address Texas nuisance law, whereas the majority opinion admittedly does not. In nuisance law, property owners may not use their property in a way that unreasonably interferes with the property rights of others. As pointed out by the dissent, "an action that does not begin as a nuisance may nevertheless become a nuisance due to changing circumstances. See Atlas Chem. Indus., Inc. v. Anderson, 524 S.W.2d 681, 685–86 (Tex. 1975) (finding that heavy rains causing previously discharged pollutants from upstream manufacturing plant to spread more broadly across downstream land to be a nuisance)."
Rolling On
Surfrider Foundation will continue to work for strong public beach access in the State of Texas, regardless of this enigmatic decision. It is in the best interest of Texans across the state and visitors to the Texas coast to push for proactive and forward-thinking coastal planning, such as with the Erosion Response Plans adopted by localities. As is encouraged by the General Land Office, these plans should incorporate coastal development guidelines that take into account any gradual erosion AND anticipated avulsive events, such as hurricanes.
As for the Severance case, the suit was initially filed in federal district court, which dismissed the case. The U.S. Court of Appeals for the Fifth Circuit affirmed the lower court's dismissal but sent some questions to the Texas Supreme Court for answers, prompting Friday's ruling. (Surfrider Foundation issued an amicus brief to the Texas Supreme Court in support of full and fair beach access.) Unless the Texas Attorney General seeks a rehearing, the decision will be certified to Fifth Circuit for a supplemental opinion.
Tuesday, November 2, 2010
What's in a Name?
Lawyers understand how important words are, as evidenced by the care with which we choose words to characterize our legal battles. Words and labels are also very important for educational outreach purposes. For Surfrider Foundation, every legal issue and litigation endeavor is coupled with a full campaign plan, including an outreach and public education component.
One important and heated debate over semantics centers around the words we choose to characterize the vast amount of trash that ends up in our oceans. The cigarette butts, plastic bags, plastic bottles, polystyrene, etc…that never break down fully when they enter the ocean, and sometimes end up washed back ashore. This material is what comprises the North Pacific Garbage Patch, and what was the impetus for the start of Surfrider Foundation’s Rise Above Plastics program.
The common label used by the National Oceanic and Atmospheric Administration, the West Coast Governors’ Agreement and most governmental bodies is “marine debris”. For instance, the West Coast Governors’ Agreement has an Action Coordination Team (“ACT”) for Marine Debris. Surfrider Foundation sits on this ACT due to our efforts to address plastic pollution in the ocean. Also, NOAA has funded educational outreach materials specifically addressing plastics in the ocean, here: "A Citizen's Guide to Plastic in the Ocean: More than a Litter Problem" - published by the Center for Environmental Education and funded by NOAA and the Society of the Plastics Industry (SPI).
Recently, state agencies in California have begun to switch from the use of “marine debris” to more accurately depict the ailment to our oceans as “trash” and “ocean litter”. The California Ocean Protection Council, which was established by the Ocean Protection Act of 2004 signed into law by Governor Schwarzenegger, has extensively studied the problem of ocean pollution. After four years of analysis and public input, the OPC released “An Implementation Strategy for the California Ocean Protection Council: Resolution to Reduce and Prevent Ocean Litter” (Available under Ocean Litter Implementation Strategy at http://resources.ca.gov/copc/). The State Water Board of California has also recently proposed a "Trash Policy" for statewide efforts in controlling the trash in the waters of the state. Below, you will find the paragraph submitted in comments by Surfrider Foundation last week (and echoed by the Clean Seas Coalition sign-on letter) that describes the importance of properly defining trash and the pollution problem in our oceans:
One important and heated debate over semantics centers around the words we choose to characterize the vast amount of trash that ends up in our oceans. The cigarette butts, plastic bags, plastic bottles, polystyrene, etc…that never break down fully when they enter the ocean, and sometimes end up washed back ashore. This material is what comprises the North Pacific Garbage Patch, and what was the impetus for the start of Surfrider Foundation’s Rise Above Plastics program.
The common label used by the National Oceanic and Atmospheric Administration, the West Coast Governors’ Agreement and most governmental bodies is “marine debris”. For instance, the West Coast Governors’ Agreement has an Action Coordination Team (“ACT”) for Marine Debris. Surfrider Foundation sits on this ACT due to our efforts to address plastic pollution in the ocean. Also, NOAA has funded educational outreach materials specifically addressing plastics in the ocean, here: "A Citizen's Guide to Plastic in the Ocean: More than a Litter Problem" - published by the Center for Environmental Education and funded by NOAA and the Society of the Plastics Industry (SPI).
Recently, state agencies in California have begun to switch from the use of “marine debris” to more accurately depict the ailment to our oceans as “trash” and “ocean litter”. The California Ocean Protection Council, which was established by the Ocean Protection Act of 2004 signed into law by Governor Schwarzenegger, has extensively studied the problem of ocean pollution. After four years of analysis and public input, the OPC released “An Implementation Strategy for the California Ocean Protection Council: Resolution to Reduce and Prevent Ocean Litter” (Available under Ocean Litter Implementation Strategy at http://resources.ca.gov/copc/). The State Water Board of California has also recently proposed a "Trash Policy" for statewide efforts in controlling the trash in the waters of the state. Below, you will find the paragraph submitted in comments by Surfrider Foundation last week (and echoed by the Clean Seas Coalition sign-on letter) that describes the importance of properly defining trash and the pollution problem in our oceans:
Definition of “Trash”. The State Water Board should make clear that the definition of “trash” is intended to mean waste in the form of discarded or littered items, and not organic debris. For instance, the current definition of “trash” as articulated by the State Water Board should not include the word “wood”. One of the most common criticisms of the term “marine debris” is that the word “debris” could mean something found in nature, such as leaves or organic matter turned up after a storm. This is confusing for people who need to understand the problem of ocean litter. Similarly, the inclusion of “wood” in the definition of “trash” could include driftwood and other naturally occurring forms of wood within a definition that should only include waste and post-consumer products, which is the commonly understood definition of “trash”. A piece of naturally occurring driftwood is not “trash” in the sense that it is a major threat to our waterways, and it should not be incumbent upon the localities to regulate this. However, lumber or other manufactured wood products should be included in the definition of trash. Additionally, the definition of trash should include explicit mention of plastics, expanded polystyrene and cigarette butts, which are three of the most commonly found items polluting our waterways.
Thursday, September 30, 2010
Struggling to reach the Sand at the Strand
Recently, Surfrider Foundation filed a complaint against the City of Dana Point for enacting a bogus Urgency Ordinance that provided for locked gates and restricted hours of access at the Mid-Strands Vista beach access way at the Strands Beach in Dana Point Headlands. This access way happens to be the most direct and most utilized way to get to the beach at Dana Point Strands. This is especially true for surfers since the access is from the parking lot to the best part of the surf break.
In the Surfrider Complaint for Declaratory and Injunctive Relief, Surfrider challenges the unlawful restriction of beach access within the state's coastal zone. Not only does the restriction of access contravene California's Coastal Act and Section 4 of Article X of the California Constitution, but the Urgency Ordinance and excessive use of local police power exercised by the City was entirely unwarranted.
On March 22, 2010, the Dana Point City Council voted to approve the Urgency Ordinance declaring the existence of a Public Nuisance condition at the Strand Vista Park and residential Dana Point Headlands Development despite the utter lack of evidentiary basis for such a determination. As our complaint states:
The Surfrider case has been consolidated with the City's suit against the California Coastal Commission for the Commission's denial of the appropriate permits for the gates and restrictive hours of access. The consolidated cases will be heard in the Superior Court of San Diego in the near future. The decision will likely be instructive as to the extent of the public's right of access to the beach in California and as to the California Coastal Commission's jurisdiction to protect this right.
In the Surfrider Complaint for Declaratory and Injunctive Relief, Surfrider challenges the unlawful restriction of beach access within the state's coastal zone. Not only does the restriction of access contravene California's Coastal Act and Section 4 of Article X of the California Constitution, but the Urgency Ordinance and excessive use of local police power exercised by the City was entirely unwarranted.
On March 22, 2010, the Dana Point City Council voted to approve the Urgency Ordinance declaring the existence of a Public Nuisance condition at the Strand Vista Park and residential Dana Point Headlands Development despite the utter lack of evidentiary basis for such a determination. As our complaint states:
"This case is really about a wealthy developer that has recruited the City to provide his undeveloped site with private security...and to provide his development with a semi-private, exclusive beach - boosting the value of his multi-million dollar lots at the expense of the public. The developer is circumventing state mandated permit requirements to obtain a fully-gated residential community in derogation of the public's right to access beaches held in trust for the benefit of the public by the State of California. This case is not about nuisance abatement."
The Surfrider case has been consolidated with the City's suit against the California Coastal Commission for the Commission's denial of the appropriate permits for the gates and restrictive hours of access. The consolidated cases will be heard in the Superior Court of San Diego in the near future. The decision will likely be instructive as to the extent of the public's right of access to the beach in California and as to the California Coastal Commission's jurisdiction to protect this right.
Thursday, August 26, 2010
Just Because It’s Old Doesn’t Make It Right
By Surfrider Summer Legal Intern Tip Wonhoff
In the 1640s, most major colonial settlements in North America were situated along bodies of water—bays, coves, rivers, lakes, and the ocean. To encourage littoral owners to build piers and wharves, Massachusetts Bay colonial authorities extended private title of property to the mean low water mark. As landowners constructed piers and wharves out from their land, they opened up the coastline for commercial trade and travel. Locations such as Boston Harbor thrived throughout the Massachusetts Bay Colony.
During this same era, in addition to their providing a key source of transit and communication, bodies of water were a prime source of sustenance. Fish and waterfowl were integral components of colonists’ diets.
So, when the Massachusetts Bay Colony passed its Body of Liberties ordinance in 1641 and amended it in 1647, titling it the Liberties Common, not only did it provide for private property ownership to the mean low water mark, but it granted a public easement over the intertidal zone for fishing, fowling, and navigation:
Parts of three present-day coastal states were once part of the Massachusetts Bay Colony: Massachusetts, Maine, and New Hampshire. To this day, both Maine and Massachusetts continue to abide by the Body of Liberties and Liberties Common. They recognize littoral landowners’ property rights down to the mean-low-water mark; and, both Maine and Massachusetts still have only expressly recognized the public easement over the intertidal zone for activities directly relating to fishing, fowling, and navigation. See, e.g. Bell v. Town of Wells, 557 A.2d 168 (Me. 1989) (overturning a state statute granting a public easement for recreational use of the intertidal zone), Eaton v. Wells, 760 A.2d 232 (Me. 2000), Michaelson v. Silver Beach Imp. Ass’n, Inc., 342 Mass. 251 (Mass. 1961).
New Hampshire, on the other hand, has taken steps to guarantee broader public access and enjoyment to her beaches. Back in 1862, the Supreme Judicial Court of New Hampshire, in Clement v. Burns, 43 N.H. 609 (1862), declined to follow the 1641 ordinance: “As a rule of positive law, the ordinance of 1641 was not binding upon New-Hampshire.” Clement at 13. Then, in 1889, the court discussed why New Hampshire rejected the Massachusetts Bay Colony ordinance’s extension of private property rights to the low-water mark:
Concord Co. v. Robertson, 66 N.H. 1, 26, 25 A. 718 (1889). In 1999, the Supreme Court of New Hampshire further determined that the common law establishes the high water mark at the mean-high-tide line. Purdie v. Attorney General, 143 N.H. 661 (1999).
So, on the one hand, New Hampshire has adopted a common-sense approach that allows citizens to stroll along the wet sand and enjoy the scenic ocean without worry of trespassing onto private property.
On the other, however, Massachusetts and Maine have opted to follow the 17th Century Massachusetts colonial ordinance. In those states, according to a strict and what some may argue is an obsolete interpretation of the colonial ordinance, beachgoers possess an easement over the intertidal zone for bird hunting, but not bird watching. Similarly, beachgoers are more prone to citation for carrying a surfboard across the intertidal zone, rather than a harpoon gun. The Maine judicial system has acknowledged this flawed logic: “Pursuant to our holding in Bell, a citizen of the state may walk along a beach carrying a fishing rod or a gun, but may not walk along that same beach empty-handed or carrying a surfboard.” Eaton v. Town of Wells, 760 A.2d 232 (2000) (Saufley, J., concurring). Yet, the state has not yet fully rectified this nonsensical distinction.
The Surfrider Foundation, and its Northern New England Chapter, have been fighting on behalf of beachgoers to push for extending the definition of “fishing, fowling, and navigation” to include surfing, SCUBA diving, and other more-tangential forms of navigation. Those cases are currently pending.
In the 1640s, most major colonial settlements in North America were situated along bodies of water—bays, coves, rivers, lakes, and the ocean. To encourage littoral owners to build piers and wharves, Massachusetts Bay colonial authorities extended private title of property to the mean low water mark. As landowners constructed piers and wharves out from their land, they opened up the coastline for commercial trade and travel. Locations such as Boston Harbor thrived throughout the Massachusetts Bay Colony.
During this same era, in addition to their providing a key source of transit and communication, bodies of water were a prime source of sustenance. Fish and waterfowl were integral components of colonists’ diets.
So, when the Massachusetts Bay Colony passed its Body of Liberties ordinance in 1641 and amended it in 1647, titling it the Liberties Common, not only did it provide for private property ownership to the mean low water mark, but it granted a public easement over the intertidal zone for fishing, fowling, and navigation:
Every inhabitant that is an howse holder shall have free fishing and fowling in any great ponds and bayes, coves and rivers, so farre as the sea ebbes and flowes...
…in all creeks, coves and other places about and upon salt water, where the sea ebbs and flows, the proprietor or the land adjoyning shall have propriety to the low water mark, where the sea doth not ebbe above a hundred rods, and not more wheresoever it ebbs further: provided that such proprietor shall not by this liberty have power to stop or hinder the passage of boats or other vessels, in or through any sea, creeks or coves, to other men's houses or lands.
Parts of three present-day coastal states were once part of the Massachusetts Bay Colony: Massachusetts, Maine, and New Hampshire. To this day, both Maine and Massachusetts continue to abide by the Body of Liberties and Liberties Common. They recognize littoral landowners’ property rights down to the mean-low-water mark; and, both Maine and Massachusetts still have only expressly recognized the public easement over the intertidal zone for activities directly relating to fishing, fowling, and navigation. See, e.g. Bell v. Town of Wells, 557 A.2d 168 (Me. 1989) (overturning a state statute granting a public easement for recreational use of the intertidal zone), Eaton v. Wells, 760 A.2d 232 (Me. 2000), Michaelson v. Silver Beach Imp. Ass’n, Inc., 342 Mass. 251 (Mass. 1961).
New Hampshire, on the other hand, has taken steps to guarantee broader public access and enjoyment to her beaches. Back in 1862, the Supreme Judicial Court of New Hampshire, in Clement v. Burns, 43 N.H. 609 (1862), declined to follow the 1641 ordinance: “As a rule of positive law, the ordinance of 1641 was not binding upon New-Hampshire.” Clement at 13. Then, in 1889, the court discussed why New Hampshire rejected the Massachusetts Bay Colony ordinance’s extension of private property rights to the low-water mark:
While the [Massachusetts] ordinance maintains the public title of large ponds, it converts to private property, and gives away, a great amount of tide-land… In this state, the transfer of the fee to the abutters has not been necessary to encourage improvements below high-water mark. Their common-law right of reasonable use has been sufficient for all the purposes for which the [Massachusetts] ordinance changed the common-law title…. Private ownership of so much of the tide-land (not exceeding 100 rods in width) as is bare twice a day, and public ownership where vessels can come to a wharf at low tide, is not an adequate or useful adjustment of rights for commercial purposes. Where tide-land ought to be improved and occupied by the abutter, above and below low-water mark, he has a common-law right to improve and occupy it.
Concord Co. v. Robertson, 66 N.H. 1, 26, 25 A. 718 (1889). In 1999, the Supreme Court of New Hampshire further determined that the common law establishes the high water mark at the mean-high-tide line. Purdie v. Attorney General, 143 N.H. 661 (1999).
So, on the one hand, New Hampshire has adopted a common-sense approach that allows citizens to stroll along the wet sand and enjoy the scenic ocean without worry of trespassing onto private property.
On the other, however, Massachusetts and Maine have opted to follow the 17th Century Massachusetts colonial ordinance. In those states, according to a strict and what some may argue is an obsolete interpretation of the colonial ordinance, beachgoers possess an easement over the intertidal zone for bird hunting, but not bird watching. Similarly, beachgoers are more prone to citation for carrying a surfboard across the intertidal zone, rather than a harpoon gun. The Maine judicial system has acknowledged this flawed logic: “Pursuant to our holding in Bell, a citizen of the state may walk along a beach carrying a fishing rod or a gun, but may not walk along that same beach empty-handed or carrying a surfboard.” Eaton v. Town of Wells, 760 A.2d 232 (2000) (Saufley, J., concurring). Yet, the state has not yet fully rectified this nonsensical distinction.
The Surfrider Foundation, and its Northern New England Chapter, have been fighting on behalf of beachgoers to push for extending the definition of “fishing, fowling, and navigation” to include surfing, SCUBA diving, and other more-tangential forms of navigation. Those cases are currently pending.
Tuesday, August 10, 2010
Lawyers and Legal Issues in the Gulf
Following the Deepwater Horizon blowout and subsequent spill, which turned into the worst environmental disaster in United States history, the Gulf was not only teeming with oil but also with attorneys to address the many causes of action flowing from the spill. 
The obvious harm that resulted to workers, community and environment must be addressed and our legal system is necessarily involved. There are a wide range of lawsuits that continue to be filed in the aftermath of this spill. The families of the deceased oil rig employees have wrongful death claims, and those crewmembers who survived may have injury claims, including possible emotional distress claims. The thousands of fishermen, crabbers, shrimpers and oyster harvesters who rely on the healthy Gulf coast waters for their livelihoods also have a legal claim. In addition, property owners along the coast, restaurants and even vacation renters will want reimbursement for economic damages. Finally, environmental organizations have filed suit for the extensive ecological harm to the Gulf and coastal wetlands.
Several environmental groups have already met to coordinate legal issues and lawsuits. Currently, there are seven Endangered Species Act cases, three Clean Water Act cases, five Outer Continental Shelf Lands Act cases, and three National Environmental Policy Act cases, amongst other environmental lawsuits in preparation or already filed. Here is a "Surfrider on Location" video description of the scene along the coast, which is the subject matter of these suits aimed at protecting and restoring coastal and ocean resources. There is likely still an excess of 100 million gallons of oil in the Gulf waters and the Coast Guard is regularly finding oiled animals and tar balls, including this one-ton tar ball below:
Surfrider Foundation intends to be part of the public process for addressing Natural Resources Damage Assessment, which will also have a number of legal issues encompassed in the NRDA procedure. The NRDA process for the Deepwater Horizon catastrophe is already underway. Under the Oil Pollution Act of 1990, the three steps in an NRDA process are: 1) Preliminary Assessment, 2) Injury Assessment/Restoration Planning, and 3) Restoration Implementation.
During the injury assessment and restoration planning of NRDA, natural resources agency appointed Trustees must determine potential restoration projects. Trustees must consider a reasonable range of alternative approaches, addressing both primary and compensatory restoration, including a “natural” approach without human intervention. “Active” primary restoration approaches would conversely involve direct intervention, and could include removing residual contamination, or replacing vegetation and essential species. NRDA Trustees must then evaluate the alternatives, considering 1) costs, 2) the extent the alternative is expected to return conditions to the baseline and compensate for interim loss, 3) the alternative’s expected chance for success, 4) the chance the alternative would help avoid future injury, or future collateral injury, 5) the extent the alternative would improve multiple resources, and 6) the alternative’s effects on health and safety.
In addition to litigation scoping and engagement, Surfrider Foundation is actively working to support a moratorium on any new drilling through support of the No New Drilling Act and the West Coast Ocean Protection Act. Additionally, we are asking the Senate to follow the House of Representative's lead in passing the CLEAR Act to address necessary reforms to current drilling regulations and by creating an Ocean Resources Conservation and Assistance fund.
The obvious harm that resulted to workers, community and environment must be addressed and our legal system is necessarily involved. There are a wide range of lawsuits that continue to be filed in the aftermath of this spill. The families of the deceased oil rig employees have wrongful death claims, and those crewmembers who survived may have injury claims, including possible emotional distress claims. The thousands of fishermen, crabbers, shrimpers and oyster harvesters who rely on the healthy Gulf coast waters for their livelihoods also have a legal claim. In addition, property owners along the coast, restaurants and even vacation renters will want reimbursement for economic damages. Finally, environmental organizations have filed suit for the extensive ecological harm to the Gulf and coastal wetlands.Several environmental groups have already met to coordinate legal issues and lawsuits. Currently, there are seven Endangered Species Act cases, three Clean Water Act cases, five Outer Continental Shelf Lands Act cases, and three National Environmental Policy Act cases, amongst other environmental lawsuits in preparation or already filed. Here is a "Surfrider on Location" video description of the scene along the coast, which is the subject matter of these suits aimed at protecting and restoring coastal and ocean resources. There is likely still an excess of 100 million gallons of oil in the Gulf waters and the Coast Guard is regularly finding oiled animals and tar balls, including this one-ton tar ball below:
Surfrider Foundation intends to be part of the public process for addressing Natural Resources Damage Assessment, which will also have a number of legal issues encompassed in the NRDA procedure. The NRDA process for the Deepwater Horizon catastrophe is already underway. Under the Oil Pollution Act of 1990, the three steps in an NRDA process are: 1) Preliminary Assessment, 2) Injury Assessment/Restoration Planning, and 3) Restoration Implementation.
During the injury assessment and restoration planning of NRDA, natural resources agency appointed Trustees must determine potential restoration projects. Trustees must consider a reasonable range of alternative approaches, addressing both primary and compensatory restoration, including a “natural” approach without human intervention. “Active” primary restoration approaches would conversely involve direct intervention, and could include removing residual contamination, or replacing vegetation and essential species. NRDA Trustees must then evaluate the alternatives, considering 1) costs, 2) the extent the alternative is expected to return conditions to the baseline and compensate for interim loss, 3) the alternative’s expected chance for success, 4) the chance the alternative would help avoid future injury, or future collateral injury, 5) the extent the alternative would improve multiple resources, and 6) the alternative’s effects on health and safety.
In addition to litigation scoping and engagement, Surfrider Foundation is actively working to support a moratorium on any new drilling through support of the No New Drilling Act and the West Coast Ocean Protection Act. Additionally, we are asking the Senate to follow the House of Representative's lead in passing the CLEAR Act to address necessary reforms to current drilling regulations and by creating an Ocean Resources Conservation and Assistance fund.
Monday, August 2, 2010
Clean Water Act Case Study: Surfrider Foundation’s Early Victory against Humboldt Pulp Mills
By Surfrider Summer Legal Intern Staley Prom
Surfrider Foundation, with its nearly 55,000 members and 90 chapters world-wide, has been protecting oceans, waves, and beaches for over 25 years. Today’s members may know little or nothing about Surfrider’s first major victory in the early ‘90s, fighting major polluters in Humboldt Bay, California, near the popular North Jetty surf spot. Surfrider’s litigation resulted in one of the largest Clean Water Act settlements in the United States at that time.
In the late ‘80s, two pulp mills on Humboldt Bay’s northern peninsula, owned by the Louisiana-Pacific Corporation (“L-P”) and the Simpson Paper Company (“Simpson”), discharged a combined 40 million gallons of untreated wastewater per day into the Pacific Ocean. The mills used chlorine in their “Kraft” bleaching process to turn brown pulp into white paper. The EPA allowed the mills to operate under modified National Pollutant Discharge Elimination System (NPDES) permits, issued in 1987. However, even with the waivers, the mills quickly began violating these permits. In late 1988, the EPA issued complaints and ordered the mills to clean up their act and comply with their permits. Meanwhile, area surfers and beach goers complained of foul colored and foul smelling water near the mills, and reported skin and eye irritation, nausea, and bacterial illnesses; scientists found traces of highly toxic chemicals, dioxin and furan, created in the chlorine bleaching process, in smokestack emissions and in fish and crab samples near the mills’ discharge outfalls.
In May of 1989, following a year-long research effort which determined that the mills’ discharges exceeded limitations for pH, chronic toxicity, total suspended solids, sanitary waste, black liquor discharges, ammonia nitrogen, and rates of dilution, discoloration, and natural light, Surfrider filed suit against the mills using the Clean Water Act’s citizen suit provision (four months after filing its Notice of Intent to Sue with the EPA). Surfrider claimed the mills were not complying with the terms of their NPDES permits pursuant to the Clean Water Act (CWA) §402, U.S.C. §1342, and further claimed this amounted to a violation of CWA §301(a), 33 U.S.C. §1311, which prohibits the discharge of pollutants from a point source into navigable waters of the U.S. unless in compliance with the Act. The specific violations Surfrider identified were taken directly from the discharge monitoring reports (“DMRs”) and non-compliance reports (“NCRs”) the defendants submitted pursuant to federal reporting requirements and defendants’ NPDES permits. Surfrider additionally claimed that both mills were violating consent decrees (settlements) they had entered into with the U.S. EPA in 1983 after alleged civil violations of the CWA. Surfrider sought to shut down the mills until they complied with their permits, and over $25 million in civil penalties.
Two months later, in July, 1989, the EPA filed suit against both mills; and in September, 1989 the U.S. District Court for the Northern District of California consolidated the Surfrider and EPA suits. Nearly two years later, in July, 1991, Surfrider settled with both defendants; and in September, 1991, both Surfrider and the EPA entered into consent decrees with the mills.
The "Humboldt Area Recreation Enhancement and Water Quality Fund" was a result of Surfrider's litigation efforts and a settlement with the mills. Both mills contributed $175,000 ($350,000 total) in funds to improve recreational and environmental resources. Surfrider used part of these funds to implement and maintain a shower and emergency telephone at the North Jetty, as well as to improve the area’s Samoa Dunes National Recreation Area initially, and the remainder of the settlement award was disbursed through the Humboldt Area Foundation. Humboldt Area Foundation permanently manages the fund, which makes interest available in perpetuity to fund grant projects meeting the spirit of the settlement agreement. A portion of the fund was initially used to evaluate and monitor the mills’ progress in cleaning up operations, and now funds projects to benefit marine or aquatic recreation and water quality in the area. To date, grants total $127,000, and have gone to projects which include: sand dunes restoration and educational projects, summer youth programs and surf camps, and swimming and boating safety programs. For a list of all grants made through the “Humboldt Bay Recreation Enhancement and Water Quality Fund,” click here.
The Surfrider and EPA consent decrees required the mills to each pay $2.9 million (for a total of $5.8 million), which at the time, were the third largest penalties levied by the EPA for CWA violations, and the largest in the Western U.S. The consent decrees also required the mills to implement treatment measures or process changes to stop their CWA violations, complete a toxicity treatment study, and install a treatment system to solve the toxicity problem. L-P was required to extend its existing outfalls (where the mill’s effluent is released into the ocean) sufficiently to keep its effluent away from recreational areas, and Simpson was required to extend its outfalls unless additional treatment could render its effluent safe for human contact. Additionally, the L-P agreement required L-P to analyze the feasibility of further changes in its mill’s processes to reduce the use of chlorine in its pulp bleaching process.
This case study illustrates the power of the Clean Water Act’s citizen suit provision for use by organizations such as Surfrider Foundation to fight large industrial water polluters. When Surfrider filed suit, the Foundation had only around 5,000 members, yet was able to successfully fight for the public interest and stop the pollution of a precious California coastal resource. Surfrider’s lawsuit drew national attention to the matter and prompted the EPA to intervene, thereby utilizing the federal government’s resources and expertise in the litigation. Moreover, settlement was a victory for Surfrider, as it provided the opportunity to obtain $350,000 to fund extensive clean water and recreation enhancement projects in the Humboldt Area, which continue today.
If you live in the Humboldt Bay area and would like to get involved with Surfrider’s Humboldt Chapter, please visit: http://surfriderhumboldt.wordpress.com/
Photo courtesy of Copyright (C) 2002-2010 Kenneth & Gabrielle Adelman, California Coastal Records Project, www.Californiacoastline.org
Surfrider Foundation, with its nearly 55,000 members and 90 chapters world-wide, has been protecting oceans, waves, and beaches for over 25 years. Today’s members may know little or nothing about Surfrider’s first major victory in the early ‘90s, fighting major polluters in Humboldt Bay, California, near the popular North Jetty surf spot. Surfrider’s litigation resulted in one of the largest Clean Water Act settlements in the United States at that time.
In the late ‘80s, two pulp mills on Humboldt Bay’s northern peninsula, owned by the Louisiana-Pacific Corporation (“L-P”) and the Simpson Paper Company (“Simpson”), discharged a combined 40 million gallons of untreated wastewater per day into the Pacific Ocean. The mills used chlorine in their “Kraft” bleaching process to turn brown pulp into white paper. The EPA allowed the mills to operate under modified National Pollutant Discharge Elimination System (NPDES) permits, issued in 1987. However, even with the waivers, the mills quickly began violating these permits. In late 1988, the EPA issued complaints and ordered the mills to clean up their act and comply with their permits. Meanwhile, area surfers and beach goers complained of foul colored and foul smelling water near the mills, and reported skin and eye irritation, nausea, and bacterial illnesses; scientists found traces of highly toxic chemicals, dioxin and furan, created in the chlorine bleaching process, in smokestack emissions and in fish and crab samples near the mills’ discharge outfalls.
In May of 1989, following a year-long research effort which determined that the mills’ discharges exceeded limitations for pH, chronic toxicity, total suspended solids, sanitary waste, black liquor discharges, ammonia nitrogen, and rates of dilution, discoloration, and natural light, Surfrider filed suit against the mills using the Clean Water Act’s citizen suit provision (four months after filing its Notice of Intent to Sue with the EPA). Surfrider claimed the mills were not complying with the terms of their NPDES permits pursuant to the Clean Water Act (CWA) §402, U.S.C. §1342, and further claimed this amounted to a violation of CWA §301(a), 33 U.S.C. §1311, which prohibits the discharge of pollutants from a point source into navigable waters of the U.S. unless in compliance with the Act. The specific violations Surfrider identified were taken directly from the discharge monitoring reports (“DMRs”) and non-compliance reports (“NCRs”) the defendants submitted pursuant to federal reporting requirements and defendants’ NPDES permits. Surfrider additionally claimed that both mills were violating consent decrees (settlements) they had entered into with the U.S. EPA in 1983 after alleged civil violations of the CWA. Surfrider sought to shut down the mills until they complied with their permits, and over $25 million in civil penalties.
Two months later, in July, 1989, the EPA filed suit against both mills; and in September, 1989 the U.S. District Court for the Northern District of California consolidated the Surfrider and EPA suits. Nearly two years later, in July, 1991, Surfrider settled with both defendants; and in September, 1991, both Surfrider and the EPA entered into consent decrees with the mills.
The "Humboldt Area Recreation Enhancement and Water Quality Fund" was a result of Surfrider's litigation efforts and a settlement with the mills. Both mills contributed $175,000 ($350,000 total) in funds to improve recreational and environmental resources. Surfrider used part of these funds to implement and maintain a shower and emergency telephone at the North Jetty, as well as to improve the area’s Samoa Dunes National Recreation Area initially, and the remainder of the settlement award was disbursed through the Humboldt Area Foundation. Humboldt Area Foundation permanently manages the fund, which makes interest available in perpetuity to fund grant projects meeting the spirit of the settlement agreement. A portion of the fund was initially used to evaluate and monitor the mills’ progress in cleaning up operations, and now funds projects to benefit marine or aquatic recreation and water quality in the area. To date, grants total $127,000, and have gone to projects which include: sand dunes restoration and educational projects, summer youth programs and surf camps, and swimming and boating safety programs. For a list of all grants made through the “Humboldt Bay Recreation Enhancement and Water Quality Fund,” click here.
The Surfrider and EPA consent decrees required the mills to each pay $2.9 million (for a total of $5.8 million), which at the time, were the third largest penalties levied by the EPA for CWA violations, and the largest in the Western U.S. The consent decrees also required the mills to implement treatment measures or process changes to stop their CWA violations, complete a toxicity treatment study, and install a treatment system to solve the toxicity problem. L-P was required to extend its existing outfalls (where the mill’s effluent is released into the ocean) sufficiently to keep its effluent away from recreational areas, and Simpson was required to extend its outfalls unless additional treatment could render its effluent safe for human contact. Additionally, the L-P agreement required L-P to analyze the feasibility of further changes in its mill’s processes to reduce the use of chlorine in its pulp bleaching process.
This case study illustrates the power of the Clean Water Act’s citizen suit provision for use by organizations such as Surfrider Foundation to fight large industrial water polluters. When Surfrider filed suit, the Foundation had only around 5,000 members, yet was able to successfully fight for the public interest and stop the pollution of a precious California coastal resource. Surfrider’s lawsuit drew national attention to the matter and prompted the EPA to intervene, thereby utilizing the federal government’s resources and expertise in the litigation. Moreover, settlement was a victory for Surfrider, as it provided the opportunity to obtain $350,000 to fund extensive clean water and recreation enhancement projects in the Humboldt Area, which continue today.
If you live in the Humboldt Bay area and would like to get involved with Surfrider’s Humboldt Chapter, please visit: http://surfriderhumboldt.wordpress.com/
Photo courtesy of Copyright (C) 2002-2010 Kenneth & Gabrielle Adelman, California Coastal Records Project, www.Californiacoastline.org
Monday, June 21, 2010
Supreme Court Holds that the Public Trust Rules --- No Takings Here
Surfrider Foundation and our pro bono counsel from McDermott Will & Emery celebrate a substantial victory from the recent decision of the United States Supreme Court, in Stop the Beach Renourishment v. Florida Department of Environmental Protection, upholding the constitutionality of the Florida state's beach management program and solidifying public beach access rights. The court unanimously supported the respondent, Florida DEP, and affirmed the lower court ruling of "no takings" of private property without just compensation in this instance. The court ruled 8-0, with the abstention of Justice Steven (who reportedly owns property on the Florida coast), to uphold the Florida Supreme Court's decision. Surfrider Foundation issued an amicus brief in support of public trust beach access rights in this case and to ensure against a ruling in favor of the private property owners. Surfrider recognized that had the ruling been in favor of the private homeowners, the concept of the public beach could have slowly vanished along with the eroding beaches around the country.
The Supreme Court held that Florida Beach and Shore Preservation Act does not deprive the petitioners of the littoral property rights without just compensation, and that petitioners did not suffer a "takings" through the state government's erosion response actions. The court held that Florida state law provides that an avulsive event, or sudden addition of sand, accrues to the state and public trust resources. Justice Antonin Scalia, known for his strict interpretation of U.S. Constitution and state law, writes for the Court:
"In Florida, the State owns in trust for the public the land permanently submerged beneath navigable waters and the foreshore (the land between the low-tide line and the mean high-water line)."
Therefore, anytime there is an avulsive event in Florida (including a beach renourishment project), the homeowner's private right of accretion does not attach. The Florida Supreme Court was affirmed in its decision to treat the right of accretions as "future contingent interest, not a vested property right" that could invoke the Takings Clause of the Fifth Amendments of the U.S. Constitution. The High Court opinion explains that a beachfront landowner would normally benefit by the slow process of accretion through the extension of the property boundary for all land that has accreted (and would, vice versa, lose land for erosion). However, in this case the publicly-funded beach nourishment project will not be considered an extension of private land, but the new sand will be available to the public, as it is considered part of the public trust. Additionally, the right of contact, as a littoral right for the beachfront property owners, does not attach in any exclusive manner for the residents.
Specifically, the "Judicial Takings" doctrine was the subject of debate among the Justices. Even though the majority held that there is no takings in this Florida case under the rules of the Florida Beach Management Program, four Justices stated that there can still be an instance where the "judicial takings" doctrine may apply in the future. The concurring Justices Kennedy and Sotomayor, opined that the Due Process Clause of the Constitution will likely foreclose any opportunity for a court to make the error of judicial takings and will alleviate the need to utilize the doctrine in any judicial decision-making. They also warn that the judicial takings doctrine could be abused and end up giving courts more discretion, rather than constraining the power of the judicial branch.
Although the issue in this case was specifically surrounding the Beach Management Program of the Florida Department of Environmental Protection, Surfrider anticipates that this case will be instructive for future courts and some lawmakers in deciding how to regard the public trust resources of our coastlines. The case serves as affirmation to the state's ability to protect their own natural resources and coastlines. As our shorelines are expected to change more rapidly with increased storms, hurricanes and sea level rise, this case will likely have increasing significance in the coming years.
Notes:
"Avulsive Event" - "sudden or perceptible loss of or addition to land by the action of the water or a sudden change in the bed of a lake or the course of a stream" as cited in the Sand Key case
More definitions available from the previous post here.
Surfrider Foundation press release located here.
Photo courtesy of Cliff1066
The Supreme Court held that Florida Beach and Shore Preservation Act does not deprive the petitioners of the littoral property rights without just compensation, and that petitioners did not suffer a "takings" through the state government's erosion response actions. The court held that Florida state law provides that an avulsive event, or sudden addition of sand, accrues to the state and public trust resources. Justice Antonin Scalia, known for his strict interpretation of U.S. Constitution and state law, writes for the Court:
"In Florida, the State owns in trust for the public the land permanently submerged beneath navigable waters and the foreshore (the land between the low-tide line and the mean high-water line)."
Therefore, anytime there is an avulsive event in Florida (including a beach renourishment project), the homeowner's private right of accretion does not attach. The Florida Supreme Court was affirmed in its decision to treat the right of accretions as "future contingent interest, not a vested property right" that could invoke the Takings Clause of the Fifth Amendments of the U.S. Constitution. The High Court opinion explains that a beachfront landowner would normally benefit by the slow process of accretion through the extension of the property boundary for all land that has accreted (and would, vice versa, lose land for erosion). However, in this case the publicly-funded beach nourishment project will not be considered an extension of private land, but the new sand will be available to the public, as it is considered part of the public trust. Additionally, the right of contact, as a littoral right for the beachfront property owners, does not attach in any exclusive manner for the residents.
Specifically, the "Judicial Takings" doctrine was the subject of debate among the Justices. Even though the majority held that there is no takings in this Florida case under the rules of the Florida Beach Management Program, four Justices stated that there can still be an instance where the "judicial takings" doctrine may apply in the future. The concurring Justices Kennedy and Sotomayor, opined that the Due Process Clause of the Constitution will likely foreclose any opportunity for a court to make the error of judicial takings and will alleviate the need to utilize the doctrine in any judicial decision-making. They also warn that the judicial takings doctrine could be abused and end up giving courts more discretion, rather than constraining the power of the judicial branch.
Although the issue in this case was specifically surrounding the Beach Management Program of the Florida Department of Environmental Protection, Surfrider anticipates that this case will be instructive for future courts and some lawmakers in deciding how to regard the public trust resources of our coastlines. The case serves as affirmation to the state's ability to protect their own natural resources and coastlines. As our shorelines are expected to change more rapidly with increased storms, hurricanes and sea level rise, this case will likely have increasing significance in the coming years.
Notes:
"Avulsive Event" - "sudden or perceptible loss of or addition to land by the action of the water or a sudden change in the bed of a lake or the course of a stream" as cited in the Sand Key case
More definitions available from the previous post here.
Surfrider Foundation press release located here.
Photo courtesy of Cliff1066
Friday, June 11, 2010
Gushing with Legal Issues
The tragic oil spill in the Gulf of Mexico resulting from the Deepwater Horizon rig blow out on April 20, 2010 has shocked the nation and has already been labeled America's worst environmental disaster. Predictably, where there is a man-made disaster and deep pockets, there will be Plaintiffs. Goodness knows there is evidence of injustice.
There have been dozens of negligence lawsuits and other claims filed by fishermen, shrimpers and the survivors of the eleven oil rig employees who lost their lives in the explosion. In one recent proposed environmental law suit, environmentalists chose to invoke the citizen suit provision of the Clean Water Act to address BP's violations resulting from the Macondo oil well blow out and weeks of subsequent spillage. Gulf Restoration Network, the Louisiana Environmental Action Network and Environment America have given formal notice to BP of the groups' intent to sue. While Surfrider is assessing our involvement, if any, in the litigation surrounding the spill and efforts to mandate strong and effective clean up efforts, our Not the Answer campaign has focused on proactive legislative efforts.
Surfrider Legal's main focus thus far is currently embodied in our legislative work aimed at restoring the 28 year Congressional and Executive moratoria on any new offshore drilling that was allowed to lapse in the fall of 2008. Two bills are currently going through Congress that would help to restore protections against new offshore drilling and safety for our national waters and coasts. Here is a summary of the proposed federal legislation:
H.R. 5213; "West Coast Protection Act of 2010"
On May 5th, Representatives from California, Oregon, and Washington introduced the West Coast Protection Act of 2010 to the House of Representatives, which would prohibit offshore drilling off the coasts of California, Oregon, and Washington. The bill would amend the Outer Continental Shelf Lands Act, which authorizes the Secretary of the Interior to grant offshore oil and gas leases. Under the new Act, the Secretary could not grant new leases for exploration, development, or production of oil and natural gas off the west coast. The bill was referred to the Committee on Natural Resources.
H.R. 5248; "No New Drilling Act of 2010"
Representatives from California, Florida, and New Jersey introduced legislation in the House of Representatives May 6th, which would prohibit further leasing of any area in the United States' outer continental shelf for the exploration, development, or production of oil, gas, and minerals. The bill would eliminate parts of the current Outer Continental Shelf Lands Act, which allow the Secretary of the Interior to create and revise oil and gas leasing programs off U.S. coasts. The bill was referred to the Committee on Natural Resources.
There have been dozens of negligence lawsuits and other claims filed by fishermen, shrimpers and the survivors of the eleven oil rig employees who lost their lives in the explosion. In one recent proposed environmental law suit, environmentalists chose to invoke the citizen suit provision of the Clean Water Act to address BP's violations resulting from the Macondo oil well blow out and weeks of subsequent spillage. Gulf Restoration Network, the Louisiana Environmental Action Network and Environment America have given formal notice to BP of the groups' intent to sue. While Surfrider is assessing our involvement, if any, in the litigation surrounding the spill and efforts to mandate strong and effective clean up efforts, our Not the Answer campaign has focused on proactive legislative efforts.
Surfrider Legal's main focus thus far is currently embodied in our legislative work aimed at restoring the 28 year Congressional and Executive moratoria on any new offshore drilling that was allowed to lapse in the fall of 2008. Two bills are currently going through Congress that would help to restore protections against new offshore drilling and safety for our national waters and coasts. Here is a summary of the proposed federal legislation:
H.R. 5213; "West Coast Protection Act of 2010"
On May 5th, Representatives from California, Oregon, and Washington introduced the West Coast Protection Act of 2010 to the House of Representatives, which would prohibit offshore drilling off the coasts of California, Oregon, and Washington. The bill would amend the Outer Continental Shelf Lands Act, which authorizes the Secretary of the Interior to grant offshore oil and gas leases. Under the new Act, the Secretary could not grant new leases for exploration, development, or production of oil and natural gas off the west coast. The bill was referred to the Committee on Natural Resources.
H.R. 5248; "No New Drilling Act of 2010"
Representatives from California, Florida, and New Jersey introduced legislation in the House of Representatives May 6th, which would prohibit further leasing of any area in the United States' outer continental shelf for the exploration, development, or production of oil, gas, and minerals. The bill would eliminate parts of the current Outer Continental Shelf Lands Act, which allow the Secretary of the Interior to create and revise oil and gas leasing programs off U.S. coasts. The bill was referred to the Committee on Natural Resources.
Thursday, March 25, 2010
Hard to Stand in Puerto Rico
It's easier to stand up on a wave in Rincon, Puerto Rico, than it is to obtain standing in court. According to the Puerto Rican Supreme Court's March 17, 2010 decision (Fundacion Surfrider, Inc v. Administracion Reglamentos y Permisos, CC-2005-732) on the legality of the Marino de los Suenos development that denied Surfrider Foundation standing in the case to challenge the high density development that will have dramatic effects on the character of the neighborhood and water disbursement in the region.
Surfrider challenged the Administration of Rules and Permitting (APRE) decision that granted a zoning change for high density development in a low-density zoned area, giving the ARPE precedent right to allow rampant high density development without employing the Planning Commission as the appropriate body for these decisions.
Surfrider was present and vocal during the administrative agency decision, and then took our grievance to court in 2005. The issue went up to the Appeals Court and then the Supreme Court in Puerto Rico. The Supreme Court wrote a strong opinion against Surfrider's standing, requiring burdensome conditions to constitute legitimacy as a Plaintiff on this action. The decision sets poor precedent for future environmental organizations who would like to obtain standing to fight poor development decisions in Puerto Rico.
In general, the Court found that Surfrider and named co-plaintiff Leon Richter's interest were not sufficiently stated to show an intimate connection between the action and the organization's "adverse interests." Specifically, the majority wrote that because Senor Richter only included a PO Box address and not his particular home address, they could not tell how close in proximity he was to the new development and how much it would disturb the characteristics of the neighborhood. The majority also requested more data to substantiate allegations on how this will affect the water distribution and intensity in the area. They called the presented information "speculative and conclusory." As for Surfrider Foundation's standing, the majority noted that Surfrider functions to protect the welfare of oceans and beach access. But they reasoned that "this project is not even contiguous with the beach and will not impede access" and that the effects of the development are not sufficient to show a particularized interest in judicial right to review.
According to the dissent by three justices, Surfrider Foundation did demonstrate that it was in the interest of the organization and the organization's individual members to work in the interest of conservation in the area. The dissent recognized that conservation is intimately related to planning decisions.
Furthermore, the dissent noted that even though Senor Richter did not have his specific address entered into the case, no one had ever doubted whether he resided as a neighbor to the proposed project. After all, how close does he have to be to allege the traffic concerns, affect on the local neighborhood and water usage concerns. The dissent noted that "there is no reason to doubt that he is truly a neighbor in the community and accurately described the public view."
At least the dissenters recognized that Surfrider Foundation has been present in the local community to help to protect and preserve coastal resources in the area for over a decade.
As the dissenting opinion author Fiol Matta quoted in the local newspaper, "today's decision was a hard blow against citizens working for the environment."
Surfrider challenged the Administration of Rules and Permitting (APRE) decision that granted a zoning change for high density development in a low-density zoned area, giving the ARPE precedent right to allow rampant high density development without employing the Planning Commission as the appropriate body for these decisions.
Surfrider was present and vocal during the administrative agency decision, and then took our grievance to court in 2005. The issue went up to the Appeals Court and then the Supreme Court in Puerto Rico. The Supreme Court wrote a strong opinion against Surfrider's standing, requiring burdensome conditions to constitute legitimacy as a Plaintiff on this action. The decision sets poor precedent for future environmental organizations who would like to obtain standing to fight poor development decisions in Puerto Rico.
In general, the Court found that Surfrider and named co-plaintiff Leon Richter's interest were not sufficiently stated to show an intimate connection between the action and the organization's "adverse interests." Specifically, the majority wrote that because Senor Richter only included a PO Box address and not his particular home address, they could not tell how close in proximity he was to the new development and how much it would disturb the characteristics of the neighborhood. The majority also requested more data to substantiate allegations on how this will affect the water distribution and intensity in the area. They called the presented information "speculative and conclusory." As for Surfrider Foundation's standing, the majority noted that Surfrider functions to protect the welfare of oceans and beach access. But they reasoned that "this project is not even contiguous with the beach and will not impede access" and that the effects of the development are not sufficient to show a particularized interest in judicial right to review.
According to the dissent by three justices, Surfrider Foundation did demonstrate that it was in the interest of the organization and the organization's individual members to work in the interest of conservation in the area. The dissent recognized that conservation is intimately related to planning decisions.
Furthermore, the dissent noted that even though Senor Richter did not have his specific address entered into the case, no one had ever doubted whether he resided as a neighbor to the proposed project. After all, how close does he have to be to allege the traffic concerns, affect on the local neighborhood and water usage concerns. The dissent noted that "there is no reason to doubt that he is truly a neighbor in the community and accurately described the public view."
At least the dissenters recognized that Surfrider Foundation has been present in the local community to help to protect and preserve coastal resources in the area for over a decade.
As the dissenting opinion author Fiol Matta quoted in the local newspaper, "today's decision was a hard blow against citizens working for the environment."
Friday, February 26, 2010
Rise Above Plastics: Litigation on Bag Bans in California
Surfrider Foundation members and activists have been extremely passionate in their involvement in our Rise Above Plastics program, which aims to reduce the harms of plastic pollution in our ocean by raising awareness of the problem and advocating for a reduction of single-use plastics and the recycling of all plastics. In fulfilling this advocacy component of the campaign, many local Chapters have been working to place bans on plastic bags through petitioning their local City Council (as has been done in San Francisco and Malibu, CA, Westport, CT, and Kaua'i, HI, for example) and for statewide and national legislation.
Over the past year, cities in California have been especially deterred from acting to pass these local ordinances because there is the potential to be sued by the "Save Our Plastic Bag Coalition," a group comprised of plastic bag manufacturers. Despite the fact that the plastic bag has been widely considered a number one offender of the environment and our oceans, this manufacturers group has sued the City of Oakland and the City of Manhattan Beach for their failure to do an EIR when passing such a law. Even though the local ordinances are intended to be protective of the environment, the SOPBC contends that the environmental harms have not been properly assessed. The plaintiff in this case tries to frame the argument as a "paper vs. plastic" debate, even though cities like Manhattan Beach have coupled their local plastic bag bans with education and outreach on why reusable bags are best for the environment. The real debate should be single-use bag versus one-time use. The single-use plastic bag may be used for 5 minutes and it will persist in the ocean for over 500 years, if not forever.
In the recent appellate court case challenging the local ordinance, Save the Plastic Bag Coalition v. City of Manhattan Beach, 181 Cal. App. 4th 521 (Cal. App. 2d Dist. 2010), the City of Manhattan Beach took its argument to the Court of Appeal to defend their ordinance prohibiting the use of plastic bags by certain retailers, including grocery stores. Instead of completing a full EIR, the city issued a negative declaration regarding the need for an environmental impact report (EIR) under the California Environmental Quality Act, reasoning that the ordinance would not have a significant effect on the environment. The SOPBC challenged the ordinance, as they had promised to when the City Council was analyzing the issue. The trial court sided with the bag manufacturers, ruling that the ordinance could increase the use of paper bags, which may have a significant negative impact on the environment and require an environmental impact report. The appellate court agreed and affirmed the judgment.
It has been an odd position for Surfrider Foundation activists in California, who are used to employing the California Environmental Quality Act to pursue their environmental campaigns. Here, the law is perversely used against Surfrider's efforts to protect the environment and help our oceans.
Luckily, many California Cities have united to address the plight of the plastic bag and their ability to regulate its usage in their own cities. They are intending to prepare a Master Environmental Assessment to be used as a foundational document to overcome any CEQA regulations governing the matter.
Surfrider will continue to petition and support municipalities in their acts to recognize the problem of plastic pollution and in their efforts to stem the flow of harmful pollution to our oceans.
Tuesday, February 9, 2010
Brannan v. State of Texas: Making Texas Beach Access A Force To Be Reckoned With
A new opinion involving the Texas Open Beaches Act, rolling easements, and the takings clause came down this week from the Court of Appeals of Texas, First District in Houston.
The opinion, deciding an ongoing battle between Homeowners versus the State, General Land Commissioner, Attorney General and Defendants Surfrider Foundation and Environemntal Defense, was delivered in the context of a denial of a rehearing. The Homeowners were challenging public beach access easements (or right to make beneficial use of the land) in Surfside Beach, where the Plaintiffs houses ended up on the sandy beach after Tropical Storm Frances in 1998.
In deciding the case, the court determined the following points:
• "the Open Beaches Act protects the public's free and unrestricted right to use the larger area extending from the line of mean low tide to the line of vegetation if the public acquires that right through prescription, dedication, or custom;
• in this appeal, it is undisputed that under the common law and the Open Beaches Act the easement" rolls" or moves with the shifting of the line of mean low tide and the line of vegetation;
• the evidence conclusively shows that there is an easement by implied dedication on these properties because the public has historically used the beach in the area where these properties are located;
• the Open Beaches Act requires the removal of the houses because it applies to anything that interferes with the public's right to use the easement, which occurred here when the easement rolled to the houses; and
• common law requires the removal of the houses because their presence interferes with the use historically given to the public at Pedestrian Beach, which included its use as an unobstructed road for travel, swimming, beach combing, and other beach related activities"
This case interprets the Texas Open Beaches Act, which is near and dear to Texas beachgoers. The Act, in part, states:
"It is declared and affirmed to be the public policy of this state that the public, individually and collectively, shall have the free and unrestricted right of ingress and egress to and from the state-owned beaches bordering on the seaward shore of the Gulf of Mexico, or if the public has acquired a right of use or easement to or over an area by prescription, dedication, or has retained a right by virtue of continuous right in the public, the public shall have the free and unrestricted right of ingress and egress to the larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico." Tex. Nat. Res. Code Ann. § 61.011(a) (Vernon 2001).
Ellis Pickett of Surfrider Foundation
The Court strongly presented evidence of implied dedication based on use, in which Ellis Picket of the Texas Upper Coast Surfrider Foundation Chapter, was cited for his personal affidavit testifying to the public's decades of beachgoing through engaging in usual beach related activities, such as swimming, boating, surfing, fishing, picnicking, sunbathing, beach combing and relaxing. The Court ruled, "[t]he summary judgment evidence shows that for a period of at least 40 years, the public has openly used Pedestrian Beach where these properties are located. The evidence shows that Pedestrian Beach 'has always' and 'forever' been a public beach 'widely' used by the public up to the line of vegetation without the public asking permission from any owner of the property; in the 1960s, Pedestrian Beach was a public road in the 1960s until cars were banned there by the Village; Pedestrian Beach was used by the public for typical activities such as swimming, fishing, sunbathing, playing, relaxing, beach combing, surfing; and Pedestrian Beach has been kept clean by members of the public."
Once again, Texas case law has recognized the common law "rolling easement" concept, especially in reciting the eloquent statement: "The law cannot freeze such an easement at one place any more than the law can freeze the beach itself. . . . An easement fixed in place while the beach moves would result in the easement being either under water or left high and dry inland, detached from the shore. Such easement, meant to preserve the public right to use and enjoy the beach, would then cease functioning for that purpose." quoting Matcha, 711 S.W.2d at 98-100.
Finally, the Court explained why the takings clause does not apply to a rolling easement: "The specific question we answer today, which has not previously been addressed by this Court or another court of appeals of this State, is whether a taking occurs when an easement rolls to a house that was not initially on the easement. Although this specific question is a matter of first impression, Texas courts of appeals have consistently held that removal of a structure or obstruction from the public easement under the Open Beaches Act is not a taking because the Act does not create an easement, but provides a method of enforcing an easement acquired by other means." See Seaway, 375 S.W.2d at 930; see also Arrington, 767 S.W.2d at 958; Moody, 593 S.W.2d at 379-80, and distinguishing Nollan v. California Coastal Commission.
In sum, this important case reaffirms the strong Texas Open Beaches Act by broadly defining an encroachment to public access, confirming the common law underpinnings and logic of the concept of rolling easements, and denying the claim for "takings" in the instance of a private structure coming onto public land.
The opinion, deciding an ongoing battle between Homeowners versus the State, General Land Commissioner, Attorney General and Defendants Surfrider Foundation and Environemntal Defense, was delivered in the context of a denial of a rehearing. The Homeowners were challenging public beach access easements (or right to make beneficial use of the land) in Surfside Beach, where the Plaintiffs houses ended up on the sandy beach after Tropical Storm Frances in 1998.
In deciding the case, the court determined the following points:
• "the Open Beaches Act protects the public's free and unrestricted right to use the larger area extending from the line of mean low tide to the line of vegetation if the public acquires that right through prescription, dedication, or custom;
• in this appeal, it is undisputed that under the common law and the Open Beaches Act the easement" rolls" or moves with the shifting of the line of mean low tide and the line of vegetation;
• the evidence conclusively shows that there is an easement by implied dedication on these properties because the public has historically used the beach in the area where these properties are located;
• the Open Beaches Act requires the removal of the houses because it applies to anything that interferes with the public's right to use the easement, which occurred here when the easement rolled to the houses; and
• common law requires the removal of the houses because their presence interferes with the use historically given to the public at Pedestrian Beach, which included its use as an unobstructed road for travel, swimming, beach combing, and other beach related activities"
This case interprets the Texas Open Beaches Act, which is near and dear to Texas beachgoers. The Act, in part, states:
"It is declared and affirmed to be the public policy of this state that the public, individually and collectively, shall have the free and unrestricted right of ingress and egress to and from the state-owned beaches bordering on the seaward shore of the Gulf of Mexico, or if the public has acquired a right of use or easement to or over an area by prescription, dedication, or has retained a right by virtue of continuous right in the public, the public shall have the free and unrestricted right of ingress and egress to the larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico." Tex. Nat. Res. Code Ann. § 61.011(a) (Vernon 2001).
Ellis Pickett of Surfrider Foundation
The Court strongly presented evidence of implied dedication based on use, in which Ellis Picket of the Texas Upper Coast Surfrider Foundation Chapter, was cited for his personal affidavit testifying to the public's decades of beachgoing through engaging in usual beach related activities, such as swimming, boating, surfing, fishing, picnicking, sunbathing, beach combing and relaxing. The Court ruled, "[t]he summary judgment evidence shows that for a period of at least 40 years, the public has openly used Pedestrian Beach where these properties are located. The evidence shows that Pedestrian Beach 'has always' and 'forever' been a public beach 'widely' used by the public up to the line of vegetation without the public asking permission from any owner of the property; in the 1960s, Pedestrian Beach was a public road in the 1960s until cars were banned there by the Village; Pedestrian Beach was used by the public for typical activities such as swimming, fishing, sunbathing, playing, relaxing, beach combing, surfing; and Pedestrian Beach has been kept clean by members of the public."
Once again, Texas case law has recognized the common law "rolling easement" concept, especially in reciting the eloquent statement: "The law cannot freeze such an easement at one place any more than the law can freeze the beach itself. . . . An easement fixed in place while the beach moves would result in the easement being either under water or left high and dry inland, detached from the shore. Such easement, meant to preserve the public right to use and enjoy the beach, would then cease functioning for that purpose." quoting Matcha, 711 S.W.2d at 98-100.
Finally, the Court explained why the takings clause does not apply to a rolling easement: "The specific question we answer today, which has not previously been addressed by this Court or another court of appeals of this State, is whether a taking occurs when an easement rolls to a house that was not initially on the easement. Although this specific question is a matter of first impression, Texas courts of appeals have consistently held that removal of a structure or obstruction from the public easement under the Open Beaches Act is not a taking because the Act does not create an easement, but provides a method of enforcing an easement acquired by other means." See Seaway, 375 S.W.2d at 930; see also Arrington, 767 S.W.2d at 958; Moody, 593 S.W.2d at 379-80, and distinguishing Nollan v. California Coastal Commission.
In sum, this important case reaffirms the strong Texas Open Beaches Act by broadly defining an encroachment to public access, confirming the common law underpinnings and logic of the concept of rolling easements, and denying the claim for "takings" in the instance of a private structure coming onto public land.
Sunday, January 31, 2010
Thinking BIG: Analyzing Cumulative Impacts with the Environmental Law Institute
Surfrider regularly challenges and litigates against harmful one-off projects through our local, grassroots approach. Oftentimes, we are the first community members to identify the specific problems that are plaguing our oceans. In addition to attacking issues on a project by project basis, we also recognize the need to take a step back and assess the larger scale state of affairs for how we can prevent these types of problems from occurring again. How can we make a better system or framework for protection of our oceans, waves and beaches?
To tackle these questions, the Environmental Law Institute comprised a Working Group of 20 top-notch coastal and ocean law practitioners, policy-makers and academics to get in a room together and hash out the issue of how to address cumulative impacts. This Working Group, which included Surfrider Foundation’s Pete Stauffer and Angela Howe, focused on assessment and minimization of the cumulative harmful effects on our ocean and pursuit to maintain the health, resilience and productivity of an ecosystem.
First and foremost, the Working Group decided to define the term “cumulative impacts.” How do they relate to ecosystem-based management (“EBM”)? To marine spatial planning (“MSP”)? As ELI points out, cumulative impacts can be defined from a scientific perspective as the summed impacts of all activities affecting the ecosystem, both human and natural. This is overlain by the existing legal framework, which focuses on the point at which those impacts become significant. In fact, “significance” is the trigger at which an impact becomes legally actionable under NEPA (National Environmental Policy Act). The more difficult questions remain: Who should bear the burden of prior impacts? When and how should we assess the state of cumulative impacts? How do you effectively and economically evaluate the success of cumulative impact mitigation and the effectiveness of planning processes to avoid harmful cumulative impacts? How to address the lack of standardization among mitigation measures?
Specifically, ELI’s work thus far has outlined legal and policy mechanisms that support cumulative impacts analysis through 1) proposing a framework for assessing and addressing cumulative impacts, 2) assessing existing laws of West Coast states in light of their ability to support an adaptive cumulative impacts framework, and 3) outlining potential remedies to address gaps in the current system. The Working Group’s efforts are geared at improving the current management system and improving overall consideration of cumulative impacts. There also is a recognized need for funding and political support of these improvements.
For next steps, there will be research geared at addressing the above-mentioned issues and concerns. The project will include outreach to people who may use this information, including research reports and materials that will target practitioners, policy-makers and researchers. Another target is the public, through increasing public awareness and involvement with healthy ocean endeavors such as this one, and through using public knowledge and feedback to further develop and inform our decisions regarding ocean uses, including conservation. ELI has held two meetings with the Cumulative Impacts Working Group, and the next and final meeting is in June to tie it all up!
To tackle these questions, the Environmental Law Institute comprised a Working Group of 20 top-notch coastal and ocean law practitioners, policy-makers and academics to get in a room together and hash out the issue of how to address cumulative impacts. This Working Group, which included Surfrider Foundation’s Pete Stauffer and Angela Howe, focused on assessment and minimization of the cumulative harmful effects on our ocean and pursuit to maintain the health, resilience and productivity of an ecosystem.
First and foremost, the Working Group decided to define the term “cumulative impacts.” How do they relate to ecosystem-based management (“EBM”)? To marine spatial planning (“MSP”)? As ELI points out, cumulative impacts can be defined from a scientific perspective as the summed impacts of all activities affecting the ecosystem, both human and natural. This is overlain by the existing legal framework, which focuses on the point at which those impacts become significant. In fact, “significance” is the trigger at which an impact becomes legally actionable under NEPA (National Environmental Policy Act). The more difficult questions remain: Who should bear the burden of prior impacts? When and how should we assess the state of cumulative impacts? How do you effectively and economically evaluate the success of cumulative impact mitigation and the effectiveness of planning processes to avoid harmful cumulative impacts? How to address the lack of standardization among mitigation measures?
Specifically, ELI’s work thus far has outlined legal and policy mechanisms that support cumulative impacts analysis through 1) proposing a framework for assessing and addressing cumulative impacts, 2) assessing existing laws of West Coast states in light of their ability to support an adaptive cumulative impacts framework, and 3) outlining potential remedies to address gaps in the current system. The Working Group’s efforts are geared at improving the current management system and improving overall consideration of cumulative impacts. There also is a recognized need for funding and political support of these improvements.
For next steps, there will be research geared at addressing the above-mentioned issues and concerns. The project will include outreach to people who may use this information, including research reports and materials that will target practitioners, policy-makers and researchers. Another target is the public, through increasing public awareness and involvement with healthy ocean endeavors such as this one, and through using public knowledge and feedback to further develop and inform our decisions regarding ocean uses, including conservation. ELI has held two meetings with the Cumulative Impacts Working Group, and the next and final meeting is in June to tie it all up!
Tuesday, January 12, 2010
Supporting a National Ocean Policy
For many years, ocean lovers and environmentalists have been calling for a National Ocean Policy or unifying law for our oceans. This policy would comprehensively take into account the multiple factors and uses of the ocean in focusing on how to best utilize and conserve ocean resources. Such a law has been proposed by our federal legislature through Oceans 21 (HR 21), a bill that has been repeatedly introduced in the House to provide the governance framework for national ocean policy including strengthening the leadership for ocean governance. It has long been regarded as “Healthy Oceans Legislation” directed at benefiting the oceans and coasts of local communities on a nationwide scale, but it has failed to recieve the political backing it needed to pass through the House and Senate.
In response to the dearth of a unifying ocean policy, President Barack Obama charged the nation with a “stewardship responsibility to maintain healthy, resilient, and sustainable oceans, coasts and Great Lakes resources for the benefit of this and future generations."
Last June, President Obama created a 23-member Interagency Ocean Policy Task Force to develop recommendations for a groundbreaking National Ocean Policy. The proposed Policy is designed to organize the more than 20 agencies and 140 laws and regulations that govern our ocean resources into a comprehensive and effective governance scheme. After several public hearings around the nation that generated overwhelmingly positive public comments in support of a National Oceans Policy, the Task Force issued their second report in December 2009 that further lays the groundwork for proceeding to coordinate the many uses of our ocean and coastal resources. This interim draft is open for public comments here. A final report that includes a broad national ocean policy framework, including marine spatial planning is due to be released toward the end of February.
So how can individual citizens show their support for the Obama Ocean Policy Task Force in their efforts to make a National Ocean Policy? Well, tomorrow, January 13th is "Wear Blue for the Oceans" day. Across the nation, supporters are rallying in over eight cities to tell the Obama Administration to support a national policy that protects, maintains and restores our oceans, coasts and the Great Lakes by Wearing Blue for the Oceans. Public rallies are scheduled to be held in Washington, D.C., San Francisco, Honolulu, Cambridge, Massachusetts, Galveston, Texas, Tampa, Florida, Seal Beach, California and New Orleans aiming to unite their voices and interests to make an impact on national policy. Even if you don't live in these cities you can simply take a picture of yourself wearing blue and upload with your statement. The Wear Blue for the Oceans website can tell you more about how you can participate.
In response to the dearth of a unifying ocean policy, President Barack Obama charged the nation with a “stewardship responsibility to maintain healthy, resilient, and sustainable oceans, coasts and Great Lakes resources for the benefit of this and future generations."
Last June, President Obama created a 23-member Interagency Ocean Policy Task Force to develop recommendations for a groundbreaking National Ocean Policy. The proposed Policy is designed to organize the more than 20 agencies and 140 laws and regulations that govern our ocean resources into a comprehensive and effective governance scheme. After several public hearings around the nation that generated overwhelmingly positive public comments in support of a National Oceans Policy, the Task Force issued their second report in December 2009 that further lays the groundwork for proceeding to coordinate the many uses of our ocean and coastal resources. This interim draft is open for public comments here. A final report that includes a broad national ocean policy framework, including marine spatial planning is due to be released toward the end of February.
So how can individual citizens show their support for the Obama Ocean Policy Task Force in their efforts to make a National Ocean Policy? Well, tomorrow, January 13th is "Wear Blue for the Oceans" day. Across the nation, supporters are rallying in over eight cities to tell the Obama Administration to support a national policy that protects, maintains and restores our oceans, coasts and the Great Lakes by Wearing Blue for the Oceans. Public rallies are scheduled to be held in Washington, D.C., San Francisco, Honolulu, Cambridge, Massachusetts, Galveston, Texas, Tampa, Florida, Seal Beach, California and New Orleans aiming to unite their voices and interests to make an impact on national policy. Even if you don't live in these cities you can simply take a picture of yourself wearing blue and upload with your statement. The Wear Blue for the Oceans website can tell you more about how you can participate.
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