Beach Access, Legal
November 06 2009

Surfrider Foundation Delivers Beach Access Blows

by Angela

The Surfrider Foundation Board of Directors approved the organization's Beach Access Policy on June 27, 2009, which recognizes access to the beach as a universal right and the goal of securing universal, low-impact beach access for all people. This right is in large part based on the Public Trust Doctrine.

According to the Public Trust Doctrine, the right to use a public resource (or “trust”) attaches to the shoreline regardless of the shoreline’s movement.
In addition to the public trust right of access, the public may enjoy a right of access to and along the beach through custom, use or legislative authorization.
Whereas the basis of the right to access our coastal waters is held firmly in the Public Trust Doctrine, we also acknowledge custom and legislative authorization of beach access rights.

The legislative authorization for the beach access rights comes in the form of beach access legislation, such as the Texas Open Beaches Act, which was bolstered this week with a statewide constitutional amendment "to protect the right of the public, individually and collectively, to access and use the public beaches bordering the seaward shore of the Gulf of Mexico."


The Texas Open Beaches Act was originally drafted in a special session of the legislature called in response to pubic outcry to prevent private property owners from erecting fences and barriers blocking citizens from enjoying stretches of Texas coast that they had historically utilized. The Open Beaches Act simply defined the public’s existing common law rights for public beach access easement across private land. This concept has been upheld in numerous intermediate courts of appeal and finds its roots as far back as ancient Roman times in the public trust doctrine.


Texas - Don't Mess with It!

Also in Texas, Surfrider Foundation is defending the Texas Open Beaches Act with an amicus brief, or "friend of the Court" brief, which we filed with the Texas Supreme Court on October 14, 2009 in the Severance v. Patterson case involving a beachfront real estate investor whose houses ended up on the public sandy beach after the hurricane season. In the brief, we argue for the continued recognition of a "rolling easement" (which allows the public beach access easement to shift with the beach landscape) as provded for the in Texas Open Beaches Act.

In another major battle to keep our beach access rights strong and available, Surfrider filed an amicus brief with the United States Supreme Court on October 5, 2009 in the Florida Department of Environmental Protection v. Stop the Beach Renourishment case involving the determination of the constitutionality of Florida’s beach management program with regards to the judicial takings doctrine. Surfrider specifically defends beach access rights and public trust law by arguing that the sandy beach belongs to the public after renourishment has occured.

In both cases, the Plaintiffs have argued for the judicial takings doctrine to be enacted to prevent the public from using the beach in front of the private property owner's homes. In the U.S. Supreme Court case, Surfrider Foundation’s brief argues that the state’s current regime properly allocates the beach access rights to the public after any beach management or restoration efforts have occurred. Specifically, our brief argues that the Florida beach access provisions of the beach management program are constitutional on their face, that the private property owner’s private rights are not affected by the Florida law, and that the Judicial Takings Doctrine of the Fifth and Fourteenth Amendment are not applicable in this case.

The Texas Supreme Court case will be heard on November 19, 2009. The United States Supreme Court case hearing will be in Washington, D.C. on December 2, 2009. Surfrider Foundation's fight for beach access and to strengthen the public trust doctrine will be ongoing.

In addition to these litigation efforts, Surfrider Foundation has been working to promulgate and strenghthen beach access laws in Hawaii, Florida, New Jersey, Texas, and several other states and localities. Surfrider Foundation has delivered many blows in recent rounds of beach access fighting, but it remains to be seen whether we will win the title match.