Marti Collins fights for Surfrider Foundation's Mission in Florida

This past weekend was Surfrider Foundation's Florida Chapters Meeting. Environmental attorney Martha Collins from Collins Law Group was able to participate in the conference to give an overview on the new Florida Administration and What Surfrider Can Do to affect policy change. She spoke on issues that are going to continuously affect Florida, like sea level rise, beach fill (or "renourishment") proposals and t-groin/breakwater proposals. Marti is currently working on behalf of Surfrider to work with the Florida Department of Environmental Protection rulemaking process regarding permitting coastal projects. Our comment letter and discussions propose increasing setback requirements for new development and updating mitigation assessment techniques, including UMAM.

Marti Collins was instrumental in garnering the REACH 8 victory for Surfrider Foundation in 2009. Marti represented Surfrider Foundation's Palm Beach County Chapter to set precedent in the arena of beach management processes. After a trial spanning several weeks, Administrative Law Judge Robert E. Meale denied the town of Palm Beach a Joint Coastal Permit for the REACH 8 beach fill project, which would have buried hard-bottom habitat amongst other things. The project was denied based on Surfrider's exposure of the project's potential harm to environmental and recreational resources through the course of the trial.

Watch Marti speak about her work here.

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

Surfrider Foundation Delivers Beach Access Blows

The Surfrider Foundation Board of Directors approved the organization's Beach Access Policy on June 27, 2009, which recognizes access to the beach as a universal right and the goal of securing universal, low-impact beach access for all people. This right is in large part based on the Public Trust Doctrine.

According to the Public Trust Doctrine, the right to use a public resource (or “trust”) attaches to the shoreline regardless of the shoreline’s movement.
In addition to the public trust right of access, the public may enjoy a right of access to and along the beach through custom, use or legislative authorization.
Whereas the basis of the right to access our coastal waters is held firmly in the Public Trust Doctrine, we also acknowledge custom and legislative authorization of beach access rights.

The legislative authorization for the beach access rights comes in the form of beach access legislation, such as the Texas Open Beaches Act, which was bolstered this week with a statewide constitutional amendment "to protect the right of the public, individually and collectively, to access and use the public beaches bordering the seaward shore of the Gulf of Mexico."

The Texas Open Beaches Act was originally drafted in a special session of the legislature called in response to pubic outcry to prevent private property owners from erecting fences and barriers blocking citizens from enjoying stretches of Texas coast that they had historically utilized. The Open Beaches Act simply defined the public’s existing common law rights for public beach access easement across private land. This concept has been upheld in numerous intermediate courts of appeal and finds its roots as far back as ancient Roman times in the public trust doctrine.

Texas - Don't Mess with It!

Also in Texas, Surfrider Foundation is defending the Texas Open Beaches Act with an amicus brief, or "friend of the Court" brief, which we filed with the Texas Supreme Court on October 14, 2009 in the Severance v. Patterson case involving a beachfront real estate investor whose houses ended up on the public sandy beach after the hurricane season. In the brief, we argue for the continued recognition of a "rolling easement" (which allows the public beach access easement to shift with the beach landscape) as provded for the in Texas Open Beaches Act.

In another major battle to keep our beach access rights strong and available, Surfrider filed an amicus brief with the United States Supreme Court on October 5, 2009 in the Florida Department of Environmental Protection v. Stop the Beach Renourishment case involving the determination of the constitutionality of Florida’s beach management program with regards to the judicial takings doctrine. Surfrider specifically defends beach access rights and public trust law by arguing that the sandy beach belongs to the public after renourishment has occured.

In both cases, the Plaintiffs have argued for the judicial takings doctrine to be enacted to prevent the public from using the beach in front of the private property owner's homes. In the U.S. Supreme Court case, Surfrider Foundation’s brief argues that the state’s current regime properly allocates the beach access rights to the public after any beach management or restoration efforts have occurred. Specifically, our brief argues that the Florida beach access provisions of the beach management program are constitutional on their face, that the private property owner’s private rights are not affected by the Florida law, and that the Judicial Takings Doctrine of the Fifth and Fourteenth Amendment are not applicable in this case.

The Texas Supreme Court case will be heard on November 19, 2009. The United States Supreme Court case hearing will be in Washington, D.C. on December 2, 2009. Surfrider Foundation's fight for beach access and to strengthen the public trust doctrine will be ongoing.

In addition to these litigation efforts, Surfrider Foundation has been working to promulgate and strenghthen beach access laws in Hawaii, Florida, New Jersey, Texas, and several other states and localities. Surfrider Foundation has delivered many blows in recent rounds of beach access fighting, but it remains to be seen whether we will win the title match.