08 • 04 • 2022
Surfrider Files Amicus Brief in Support of Public’s Customary Beach Access in Florida
Florida’s beaches are world-renowned, attracting visitors from around the U.S. and internationally to their sandy shores and warm waters. But tourists might be surprised and dismayed when they get there only to find oceanfront property owners blocking off access with ropes, chains, and “No Trespassing” signs. Walton County, on Florida’s panhandle, has been a hot bed for public beach access disputes in recent years, such that in 2017 the County enacted a “customary use” ordinance recognizing and protecting the public’s rights to recreational access of the County’s dry sand beaches based on past historic use and the doctrine of custom. In Florida, the public has rights to access all beaches seaward of the mean high tide line, based on the public trust doctrine, as codified in the Florida Constitution, Article 10, Section 11. Customary use provides an additional source of public rights above, or landward, of the mean high tide line, to what’s commonly referred to as the dry sand beach. As the Florida Supreme Court provided in 1974, the public’s customary use rights arise where use has been been ancient, reasonable, without interruption, and free from dispute. (City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73 (Fla. 1974))
However, after Walton County enacted its customary use ordinance, the Florida legislature, bending to beachfront property owners’ interests, preempted any such ordinances passed after 2016, thus invalidating Walton County’s ordinance. Instead, HB 631 established a new process whereby local governments must file lawsuits for declaratory relief in order to have the public’s customary use rights judicially affirmed on their beaches.
Florida’s legislation requires government entities provide a noticed hearing to adopt a formal notice of intent to affirm the existence of customary use rights, and to go to court within 60 days to have those rights affirmed. Particular notice must be provided to all owners of subject beachfront parcels, and those owners have the right to intervene in the proceedings. Local governments have the burden to prove that a recreational customary use has been ancient, reasonable, without interruption, and free from dispute.
Walton County was the first governmental entity to begin the process, filing its lawsuit in 2018, and its proceeding is thus far the most complex, with more than one thousand beachfront property defendants who have intervened to oppose customary use rights. Surfrider has been closely monitoring the case. In 2020, roughly a dozen beachfront property owners filed motions for summary judgment, arguing that the County couldn’t prove customary use on their properties as a matter of law because the County purportedly waived any interest in their properties via a 1978 Resolution related to a development. Unfortunately, the First Judicial Circuit for Walton County agreed and held that the County abandoned the public’s customary use rights in 1978, which constituted an “interruption” in the public’s use precluding the establishment of customary use rights; and that use since 1978 does not constitute “ancient” use as required for customary use.
The County has filed an appeal, arguing it couldn’t have abandoned the public’s customary use rights as it doesn’t have the legal authority under the Florida Supreme Court’s Tona-Rama decision. Today, Surfrider, on behalf of the Emerald Coast Chapter, filed a Motion for Leave to file an amicus curiae (“friend of the court”) brief, along with the brief, in support of the County. Surfrider’s brief emphasizes that only the public can abandon their customary use rights – by actually stopping using the beach – which has never occurred along Walton County’s shores. Further, even if a government could dispense with customary use rights, Surfrider argues that any transfers of the public’s rights should be subject to a heightened standard, such as that applied to transfers of public trust property. Under caselaw, transfers of public trust tidelands require a showing of a specific intent to do so, and that such transfer be in the public interest. A holding that a government can abandon the public’s customary use rights is contrary to the Florida Supreme Court’s holding in Tona-Rama, and could have significant adverse implications for public recreational access up and down Florida’s coast. As noted in Surfrider’s brief, customary use rights share a symbiotic relationship with public trust rights, often facilitating access to the public trust tidelands, and enhancing exercise of public trust rights. For example, customary use allows recreational users to sit on the dry sand, and put things like beach towels, surfboards, and sand buckets on the dry sand.
“The beach is made of shifting tiny grains of sand that collectively protect our community, define our place, and in countless ways support our very being. There is nothing more important to our community than our beach,” says Emerald Coast Chapter Member Mike Sturdivant. “Like the tiny grains of sand that make up our powerfully protective beach, the people of Walton County and the people of Florida stand together and overwhelmingly agree - the beach is public. The beach is for everyone. It always has been. It must always be. That is why Surfrider Foundation's Emerald Coast Chapter supports Walton County as an amicus curiae “friend of the court” party in the County's lawsuit, and filed today's brief.”
Surfrider continues to monitor the broader Walton County case and customary use issue in the state. Discovery is underway in the broader case, and an eight-week trial has been set to begin May 16, 2023. A pre-trial conference is scheduled for May 2nd. It is possible, given the breadth of the case and large number of potential witnesses, that the trial could last longer. As Judge Green noted at the July 29th Case Management Conference, “We’re all in untrodden territory here.”