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:

“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.

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:

"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.

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.

So, these guys can use your land, but surfers can't?

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.

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

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 Case of the Problematic Hot Dog Stand

Yesterday's hour-long U.S. Supreme Court hearing on the Florida Department of Environmental Protection v. Stop the Beach Renourishment beach access case afforded a lively debate, including hypothetical scenarios of hot dog stands and spring breakers and enlightening discussion of case law. The case centered around the private oceanfront property owners right to exclude the public from the sandy beach in front of their houses after the state had filled that beach with taxpayer-bought sand.

Justice Sotomayor poignantly highlighted the shaky arguments of the private homeowners, including the tenuous fears of unwanted hot dog vendor who may perturb the sanctity of the sandy beach. Sotomayor pointed out that the hot dog vendor could still sell hot dogs on the beach up to the mean high tide line (or "standing in a foot of water") regardless of the property owners rights based on the public's rights under the Public Trust Doctrine. Her point in bringing up the hot dog vendor in the water was to show that the only right that the property owners are complaining about, with respect to unwanted vendors, is the right to incrementally move the hot dog vendor away from their homes in the case that the beach is accreting. Both Justices Breyer and Sotomayor seemed more sympathetic to the state’s beach renourishment program and its public access goals. Justices Roberts and Alito seemed to side with the private homeowner’s fears of noisy hot dog stands.

Somewhat surprisingly, Justice Scalia, a known supporter for invoking the takings clause, seemed somewhat neutral and inquisitive of the homeowners' motivations. Scalia thought the state's action could be a “good deal” for the private property owners given the erosion control value of the new sand. However, Justice Roberts turned this argument around to say that the value of erosion control could be factored in as a deduction from the "just compensation" given in return for a state purchase of the property.

Additionally, the Justices seemed interested in examining the uncharted concept of a "judicial taking," which would be when an act of the judiciary constitutes an unconstitutional taking of property. The Justices posed the hypothetical of an elected judge who campaigned on the plan of overturning a takings law. If the judge won, and ruled in favor of a "takings" it would presumably be a judicial takings versus a "legislative takings" which is done through an enacted law.

As for the rights of accretions and contact, most of the Justices were not clear on how they interpreted Florida case law, except Scalia who stated that the Sand Key decision was a good application of common law that the right of contact with the mean high water line is inherent in the right of access. Other than Scalia, none of the Justices seemed to reveal whether they felt that the rights of accretion and contact were either taken or existed in the first place.

From the line of questioning presented by the Supreme Court Justices yesterday, most attorneys and scholars have speculated that the decision will likely result in a 4-4 split among the Justices. A tie would automatically affirm the lower court’s decision, meaning the property owners would lose.

Prior to oral arguments, Surfrider Foundation submitted a brief of amicus curiae to the Supreme Court, which sought to persuade the Highest Court that Florida’s beach management program does not take littoral rights from property owners because accretion and contact are not absolute littoral rights and as a result the beach regulations were not unconstitutionally applied nor was the Florida Supreme Court’s decision a “Judicial Takings.”

The final written decision will likely be released before the end of the term in June.

Transcripts from the oral argument are available online.

Some important vocabulary if you are reading the caselaw or hearing transcript:
Avulsion – an abrupt change in the course or channel of a water boundary with land, resulting in the loss or addition of land. The sudden and perceptible nature of this change distinguishes avulsion from accretion.
Accretion – the adding on or adhering of something to property, usually gradual and imperceptible addition of sediment to shore by action of the water
Littoral rights – refers to “rights concerning properties abutting the ocean, sea or lake rather than a river or stream (riparian). Littoral rights are usually concerned with the use and enjoyment of the shore.
Reliction – the gradual and imperceptible withdrawal of water from land by lowering of the surface water level

This Week at the Supreme Court: Beach Access

The Supreme Court will hear a very important beach access case this Wednesday, December 2nd. At issue is the right of the public to access and use the sandy beach in front of private property owner’s beachfront houses after the sandy beach has been replenished by the state’s beach management program. (That is, taxpayer-bought sand is poured on the beach in order to widen the beach and counteract erosion.)Before the United States Supreme Court granted cert, the Florida Supreme Court heard the matter, and decided 5-2 decided that Florida’s beach management program was valid and that the state has "a constitutional duty to protect beaches."

Not only has Surfrider Foundation filed an amicus or "friend of the court" brief in this case (see previous blog), but Surfrider has also been researching and documenting various beach access regulations in our State of the Beach Report by Rick Wilson. For more information, see today’s news articles.

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.