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.

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.

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!

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.

Surfrider Defends North Shore at Hawaii Supreme Court

Yesterday the Hawaii Supreme Court heard very important oral argument in the matter of Unite Here! Local 5, et al. v. City and County of Honolulu, et al., 120 Hawaii 457, 209 P.3d 12171 (2009), regarding plaintiff’s efforts to obtain a Supplemental Environmental Impact Statement to evaluate changed circumstances and intensity of environmental impacts. Alongside several other Hawaii environmental groups, the Surfrider Foundation has submitted an amicus brief to the Hawaii state Supreme Court in support of Keep North Shore Country and Sierra Club's case opposing Turtle Bay Resort eight-fold expansion. The obsolete 1985 EIS failed to reassess traffic concerns and endangered species protections for the past 25 years. Surfrider Foundation was fortunate to have Earthjustice Attorney, Isaac Moriwake, representing us in the “friend of the court” capacity to expertly argue the significance of the traffic and species concerns, which should be fully accounted for through Hawaii state environmental laws. Isaac reported that the oral argument went well yesterday and we are hopeful for a friendly verdict.

The Supreme Court reviewed a split 2-1 decision made by the State Intermediate Court of Appeals (ICA), which denied the plaintiff's request for an updated review of the proposed development's environmental and community impacts. The ICA majority held that no supplemental EIS would ever be required unless the "project itself" changed. According to this intermediate court ruling, there is the possibility that no amount of time would be adequate to require a new environmental analysis. Turtle Bay’s 1985 EIS could remain valid for hundreds of years, even if there are major hurricanes, drastic shoreline erosion, or significant changes to the community in the area.

According to the Sierra Club press release, "Much has changed in the last two decades, most notably the rapid growth in traffic congestion along the narrow, two-lane Kamehameha Highway, the only regional roadway on the North Shore," said Gil Riviere, President of Keep the North Shore Country. "The expansion plan is extremely unpopular due to concerns of over-development of the rural area, traffic gridlock, new environmental concerns such as endangered monk seals pupping on the resort property, and the likelihood of disturbing ancient Hawaiian burials."

“The purpose of an EIS is to ensure decision makers have the necessary information about the human and environmental impacts of a proposed project,” said Robert D. Harris, Director of the Sierra Club, Hawai`i Chapter. “This lets the community be involved in the process and ensures smart decisions are made,” he continued. “Plainly, we cannot rely upon obsolete information to approve a project that is clearly no longer appropriate for the community.”

Surfrider members who attended the hearing yesterday reported that the oral argument and subsequent rally went a long way in showing support for defending Oahu's beautiful North Shore coastline and coastal commmunity. For more information, see today’s online article. Additionally, a recording of the oral argument should be posted shortly here. The final decision on the case is likely to come out in 2-6 months. We hope that the Hawaii Supreme Court sees the need for constant environmental review and vigilance, along with the need to clarify the strength of the Hawaii Environmental Policy Act.

Surfrider Foundation Legal Handbook - Now Published Online

Surfrider Foundation's Legal Handbook is now published and available online. This handbook is an informational resource intended to enable Surfrider members to understand the law as it pertains to Surfrider campaigns. The Legal Handbook also explains how you can engage in legal issues and environmental advocacy as a Surfrider Chapter or a public citizen. The 100 page manual covers the following:

Chapter 1: Surfrider Litigation Program
Chapter 2: Environmental Advocacy (including testimony at public hearings, standing issues for litigation and FOIA)
Chapter 3: Water Quality (including the Clean Water Act)
Chapter 4: Beach Access (including the Public Trust Doctrine)
Chapter 5: Coastal Development and Land Use
Chapter 6: Beach Preservation

Why It Matters: Citizen involvement in monitoring and reporting pollution and beach access violations are key to protection and preservation of the oceans and beaches that we love. In order to become further involved, it may become important to know the law surrounding these issues. A proactive citizen will want to know the legal standards that government and industry must abide by, at what point violations occur, and perhaps, when the laws should be changed.

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