How the Legal System Saves the Surf
by Surfrider Legal Intern Stephanie Haughey
The value of surfing to society is undeniable. For many people, surfing represents a sacred union with nature, a livelihood, and a fundamental part of local heritage. Surfing is an important economic and cultural resource to many local communities.
Problems like coastal development, pollution and shoreline modification have threatened iconic surf breaks around the world for decades. “Killer Dana,” a powerful surf break in Dana Point, California, came to its death on August 29, 1966 when the Army Corp of Engineers transformed the premier surf spot into a recreational harbor, complete with a mile-long rock and concrete jetty. So too was the case for Stanley’s Reef in Ventura, California when the surf break was destroyed by boulders dropped onto the beach and surf line in order to accommodate construction of a new freeway onramp.
Surf breaks like Trestles, Jaws and Teahupo’o are often christened the Yosemite Valleys of surfing and no doubt require the same level of protection as our national parks.
How are surfing resources currently legally protected?
Many state laws and polices now recognize surfing as an indispensable economic and cultural resource and promote its protection. Section 30220 of the California Coastal Act protects coastal areas suited for water-oriented recreational activities that cannot readily be provided at inland water areas.
Section 205A-2 of the Hawaii Coastal Zone Management Program protects coastal resources uniquely suited for recreational activities that cannot be provided in other areas and requires replacement of coastal resources having significant recreational value, including but not limited to, surfing sites when such resources will be unavoidably damaged by development. Additionally, Hawaii’s former governor Linda Lingle signed an executive order to establish two surfing reserves that comprised surf breaks off Waikiki and the north shore of Oahu in 2010.
The Rincón chapter of Surfrider successfully completed a three-year campaign in 2004 when Puerto Rican Governor Sila M. Calderon Serra endorsed bill “P. de la C. 2983” to create the “Reserva Marina Tres Palmas de Rincón” in Puerto Rico. The law established a marine reserve in the Tres Palmas area of Rincón and devoted $100,000 for the development of a management plan for the marine reserve.
The California Coastal Commission, a state agency with quasi-judicial regulatory oversight over land use and public access in the coastal zone, established precedent in 1984 when it recognized “surfable” waves as a natural resource and required that an agreement be reached whereby Chevron would build an artificial surfing reef if Surfrider proved that the proposed 900-foot rock jetty that was designed to protect underwater pipelines at a Chevron facility in El Segundo, California caused a substantial decrease in surfable waves in the area. Not surprisingly, the jetty substantially altered the surf break and Chevron paid to construct Pratte’s reef, the first artificial surf reef in the United States.
What more can be accomplished to ensure the legal protection of surfing resources?
With an ever-increasing surfing population, continuous coastal development, and competing use pressures in the coastal zone, the legal protection of surfing resources is becoming ever more important.
The Surfrider Foundation and other environmental organizations like Save the Waves Coalition, Wildcoast and Surfers Against Sewage have made substantial progress towards the protection of surfing resources around the world. For example, the World Surfing Reserves (“WSR”), a program that identifies, designates and preserves outstanding waves, surf zones and their surrounding environments, was launched in 2009 by the Save the Waves Coalition, National Surfing Reserves Australia, and the International Surfing Association. The California Coastal Commission once again acknowledged the value of surfing resources when it supported the designation of the WSR program and declared in its staff report that natural surf breaks are important public recreational resources deserving protection and preservation.
While efforts like the WSR have drawn necessary attention to surf protection, they may not be legally binding and much more can be accomplished to ensure that surfing resources are not destroyed. One way to achieve this is to ensure surfing resources are legally protected.
Courts should be more flexible in their interpretation of laws that govern coastal development and the protection of surfing resources. For example, courts could expand their interpretation of the Public Trust Doctrine so that it protects surf breaks. Under the public trust doctrine, navigable waters, the submerged land beneath them, and tidelands, including waters off the coast, are held by the State in trust for the benefit of all people. Although surf breaks are arguably within the scope of the public trust because they are located along the coast, courts have been reluctant to apply the public trust doctrine to recreational activities within the surf zone.
Additionally, legislatures could provide greater protection to coastal resources by drafting more preservation-motivated statutes, like those found in the California Coastal Act. Such laws could help lead to the recognition of the surf zone as a legitimate recreational area and serve as an impetus to the regulation and preservation of surfing resources.