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Beach Driving: Part 2

August 13 2012 | Beach Access, Coastal Preservation, Legal,
by Joseph Matuk and Carolyn LaBarbiera, Surfrider Summer Interns

Beach driving not only involves ecological considerations; it also involves beach access and freedom to enjoy coastal resources.

States such as Oregon, Texas, North Carolina, and Florida have used beach driving as a legal foundation to establish the public’s right to access the beach.  At some locations In these states, public access is dependent upon the continued historical use of the dry sand beach as a public right-of-way.  However, in states which permit beach driving, this privilege is not unlimited, nor is it unrestricted.  Vehicular use on a beach is often governed by permitting as well as seasonal, temporal, and area restrictions.  The Florida Supreme Court has even stated local governments can impose fees to access the public trust land (public easement) as long as the fee revenue is used to improve and enhance the public beach.

For example, the Texas Open Beaches Act (and the public’s right to access the beach), perhaps the most comprehensive and strongest beach-related legislation due to its inclusion in the Texas constitution, specifically permits people to use vehicles on the public easement portion of the beach.  This easement - a right to use a property for a specific purpose - does not confer ownership to the public, but it does give citizens the legal right to access the dry sand. 

Modeled after Texas law, Oregon’s Beach Bill (passed in 1967), guarantees public access to Oregon’s entire coastline.  The bill was enacted, in part, as a result of numerous accounts and photographic evidence of the public’s use of the beach as a highway for automobiles throughout Oregon history.  The Oregon Legislature ruled, in part, that because the public had enjoyed vehicular access to the beach since time immemorial, this use was sufficient to help establish a public easement through the legal concept of the doctrine of custom - a law that is created because of tradition.  In addition to Oregon’s Beach Bill, the State Highway Commission is vested with the authority to set aside beach access and prohibit vehicle use.

Public access established through vehicular traffic or the public’s continued use of the beach often encounters legal disputes with private owners regarding ownership and private property rights.  Most recently, however, beach driving has raised legal issues with the environment as seen in the Cape Hatteras National Seashore in the Outer Banks, North Carolina.  A final rule was published in the Federal Register in January 2012 and became effective in February 2012 placing seasonal and location restrictions on beach driving along 26 miles of Cape Hatteras to help protect the snowy plover and sea turtles beach habitats.  The new restrictions, including a permitting structure, route markers designating paths, and limitations on pedestrian use, are the final result of a 2007 lawsuit initiated by the National Audubon Society and other environmental groups claiming the city failed to implement an adequate plan to regulate beach driving and protect these species.  According to the National Parks Service rules, National Parks or Seashores must create and implement a plan to manage off road vehicles; the plan must outline ways to minimize impacts on wildlife and wildlife habitats, among other requirements. 

Although the regulations are recent and enforcement is new, many Outer Banks residents are furious they have been denied a previously unencumbered right to drive on the beach and visit beach areas otherwise inaccessible to automobiles.  In light of this opposition, the U.S. House of Representatives recently passed a bill to remove the new restrictions; the bill is now in the Senate awaiting further action. 

The North Carolina debate has now become a legal battle between public access and federally protected species.  Like the dry sand, wild animals are also a state resource and the state holds the animals in a trust for the benefit of the people.  Given the state’s dual responsibility to protect both animals and public access, it is likely North Carolina residents - both people and animals - will have to reach a symbiotic agreement rather than different, mutually exclusive plans to govern the beach.  Nevertheless, the public trust doctrine’s application to wildlife resources is unchartered legal territory and the state’s legal duty to its citizens remains integral to any determination.

Beach driving is an integral aspect of the legal framework of public access for many states.  However, public access is not always dependent on beach driving.  For example, in California public access to the beach is founded independently of vehicular use on the beach.  Jurisdiction over state parks in California is conferred to the California Department of Parks and Recreation which has the authority to issue or revoke permits to use vehicles on the beach.   Beach driving is often codified in city charters in ordinances permitting beach driving by the proper authorities in emergencies and for maintenance purposes.   Aside from these ordinances enabling particular instances of beach driving, most cities explicitly prohibit public beach driving and legal issues focus on environmental or safety concerns rather than access rights.

This article is part two of a three-part series exploring the various impacts of beach driving throughout the country.

Here is Part 1 of this series.

You can learn more about beach driving on Beachapedia at: http://www.beachapedia.org/Beach_Driving

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