06 • 26 • 2019
Is Surfing protected under the Public Trust Doctrine?
A recent law review article is a great resource for Surfrider’s chapters and members looking to learn more about surfing rights in their home states. In their article Rhino Chasers and Rifles: Surfing under the Public Trust Doctrine, Jesse Reiblich and Dan Reineman consider whether the right to surf is protected by a legal principle referred to as the Public Trust Doctrine.
They first recognize the cultural and economic significance of surfing. The sport generates billions of dollars annually. As an example, surfing generates an average of $23.8 million for Mavericks Beach in Half Moon Bay, California each year in tourism, while surfing apparel and equipment was estimated in 2017 to be a $13 billion business. Surfing is not only an economically beneficial sport in developed nations but has brought significant economic growth to developing nations as athletes venture to their coasts in an attempt to catch the best waves. Given that surfing is important to not only many individuals but many economies around the world, there is a strong desire to protect the right to participate in this sport.
This is where the Public Trust Doctrine comes in. The Public Trust Doctrine protects the public use of certain natural resources and says that those resources are owned by the people and never to be transferred into private ownership. The ancient Roman version included air, running water, the sea and seashore but as the doctrine evolved into the American adaptation we use today the sea and seashore were considered to be owned by the states who held the resources in trust for public use. The doctrine imposes responsibilities and limitations on what the states may do with the waters and protects public use and access to the area.
Currently each state has their own interpretation of the Public Trust Doctrine, which Reiblich and Reineman’s article delves into. Some interpretations are enshrined in the state constitution while others are codified in law; each one includes the right to do different things on the sea and its shore. In Illinois Central Railroad v. Illinois, the Supreme Court determined that each state’s public trust doctrine protects at a minimum the right to navigate, conduct commerce and fish on the waters of the state. However, the limits of what may be protected under this doctrine are largely unknown.
Rhino Chasers and Rifles provides an in-depth look, state by state, on how the public trust doctrine is interpreted and its implications for surfing. While New Jersey is the only state that explicitly protects the right to surf under the Public Trust Doctrine, many states protect the right of general recreation on their waters. Further, in many states, language protecting the use of the ocean for any lawful purpose suggests that surfing would likely be a protected use in those states. The strongest cases for the protection of surfing under the Public Trust Doctrine can be made in California, Hawaii, New Hampshire, New York, North Carolina, and Oregon while other state laws in Texas and Washington suggest that access to and use of the beaches and oceans is independently protected. In other states the argument can be made that surfing is a protected form of recreation or navigation.