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:

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.

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.

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.

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

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

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.