12 • 19 • 2018

Lawsuit Filed to Protect Customary Use in Walton County, Florida

By Staley Prom

On December 11, 2018, Walton County, located in the Florida panhandle, filed a lawsuit asking the Circuit Court for the First Judicial Circuit in Walton County to affirm the public’s right to recreationally use the county’s dry sandy beaches. Specifically, the County has asked the court to declare that the public’s use of the county’s sandy beaches has been ancient, reasonable, without interruption, and free from dispute, and therefore that the public has a right to continue to use the beaches based on the doctrine of “customary use.” 

Walton County previously adopted its own Customary Use Ordinance in 2016 (which it revised in 2017), recognizing and protecting the public’s historic use of the beach. In doing so, the County recognized that recreational use of its beaches is “a treasured asset of the County which is utilized by the public at large,” and that “the dry sand areas of all of the beaches in the County are a vital economic asset to the County.” Surfrider has been supportive of public beach access along Florida’s Emerald Coast and advocated for adoption of the ordinance. After being challenged by a beachfront property owner, the U.S. District Court for the Northern District Court of Florida (in Alford v. Walton County) upheld the ordinance, concluding that the county had home rule authority to adopt it. Subsequently, however, in March 2018, the Florida legislature adopted H.B 631, a bill preempting local customary use ordinances passed after January 1, 2016, unless adopted pursuant to a new process. Therefore, Walton County’s ordinance was taken off the books and the Alford decision was ordered vacated.

However, Walton County has remained committed to protecting beach access for its residents and visitors, and is now the first local Florida jurisdiction to begin moving through the new legislatively mandated process. On November 3, it took the first required step, by holding a noticed public hearing and adopting a formal notice of intent to affirm the existence of customary use rights on certain portions of private beachfront property. With the filing of its complaint on December 11th, the County has taken the second step, and pursuant to H.B 631, the complaint names the over 1,000 specific parcels of property upon which the County seeks to affirm the existence of recreational customary use. Those affected property owners may now intervene and become parties in the action. 

The complaint also lists each source of evidence – over 8,000 pages - upon which the County will rely in establishing that the public’s use of the beach has been ancient, reasonable, without interruption and free from dispute. The evidence is voluminous, and includes historical and archaeological literature on pre-Columbian Florida and native Americans’ use of the beach, cultural resource surveys, photographs throughout the 1900s from the Florida Department of Environmental Protection and U.S. Geological Survey, journals and newspaper articles documenting beach use from the turn of the century through the 1900s, aerial photographs from the 1940s through the 1970s, as well as testimony and affidavits (including photographs) from residents and visitors to Walton County regarding their beach use.   

The Surfrider Foundation is closely watching this case, and is greatly supportive of Walton County and the public beach access it seeks to protect. Surfrider members use and enjoy Walton County’s sandy beaches for recreation, including to relax with their families, stroll down the beach, and hang out after surfing and fishing. Enjoying the beach is one of the primary reasons people choose to live and vacation in Florida, and the public’s right to continue to enjoy it must not be lost. Affirming customary use would not allow the public to use the beach in a disruptive manner, but would merely continue to allow recreational uses that have been enjoyed for generations, such as walking on the beach, sitting on the sand or on beach towels and under umbrellas, picnicking, and building sand castles.

Stay tuned for updates in this case and learn more from Surfrider’s Emerald Coast Chapter here and here