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.