Through development of litigation strategy and legal policy analysis, Surfrider Foundation's Legal Department is focused on furthering Surfrider's mission of protection and enjoyment of the world's oceans, waves and beaches for all people through a powerful activist network. Surfrider engages in advocacy legal endeavors through the combined efforts of volunteer attorneys, legal interns, the Legal Issues Committee to the Board of Directors, Chapters and staff.
Lahaina Injection Wells - Surfrider Legal is working diligently to protect Maui's coastal waters from degradation by the Lahaina wastewater facility's wastewater injection well practices. Experts have shown a hydrologic connection from these wastewater discharges and the nearshore water quality on the Northwest coast of Maui. Surfrider and a coalition of local groups, represented by Earthjustice, are suing the the County of Maui for federal Clean Water Act violations. Surfrider received a ruling in our favor from the federal District Court in January 2015, but the issue was appealed to the Ninth Circuit Court of Appeals. We were successful at the Ninth Circuit, but the County of Maui has appealed it to the U.S. Supreme Court, which granted the petition for certiorari. If there is no settlement, the case will be heard in D.C. on November 6, 2019.
Clean Border Water Now –In July 2018, the Surfrider Foundation filed suit against the U.S. International Boundary and Water Commission (“IBWC”) because of IBWC’s ongoing violations of the Clean Water Actin the Tijuana River Valley at the border of the United States and Mexico. Violations include the unpermitted discharge of pollutants such as sewage, contamination, chemicals, and heavy metals through its flood conveyance structure into the Pacific Ocean. In December 2018, the U.S. District Court for the Southern District of California denied IBWC’s motion to dismiss part of Surfrider’s lawsuit, allowing the suit to proceed. Surfrider is represented by pro-bono counsel at McDermott, Will & Emery.
U.S. Steel - In January 2018, the Surfrider Foundation, on behalf of its Chicago Chapter, filed a Clean Water Act lawsuit against the U.S. Steel Corporation for the company’s chronic Clean Water Act violations at its Portage, Indiana facility. U.S. Steel’s numerous violations include at least 90 days of self-reported pollutant discharge violations, over 30 monitoring and reporting violations, and at least six maintenance violations over the five year statute of limitations period. Most egregiously, in April 2017, U.S. Steel illegally spilled around 300 pounds highly toxic hexavalent chromium into a small waterway that empties directly into Lake Michigan near a popular recreation and surf spot, and adjacent to the Indiana Dune National Lakeshore. Surfrider is generously represented pro-bono by the Abrams Environmental Law Clinic at the University of Chicago Law School.
Save Trestles - Over the past several years, the Surfrider Legal Team, along with our entire staff and activists throughout the world have been fighting to save the premier California surf spot, called Trestles, and the surrounding San Onofre State Beach, which is still jeopardized by a proposed toll road extension plan of the Transportation Corridor Agencies. The latest incremental victory in this fight was in June 2013 when the Regional Water Board decided to deny a permit for the first 5.5 miles of the toll road project.
Atlantic Seismic– On December 11, 2018, Surfrider Foundation, along with a strong coalition of environmental groups, filed suit against the Trump Administration, challenging approvals that will allow seismic airgun blasting in the Atlantic ocean. The suit brings causes of action under the Endangered Species Act, Marine Mammal Protection Act and the National Environmental Policy Act to challenge the National Marine Fisheries Service’s action to issue Incidental Harassment Authorizations to five companies that conduct seismic testing off the Atlantic coast from Maryland to Georgia. This area is the calving grounds of the critically endangered North Atlantic right whale, that has only 400 members left in the species, and just 100 females capable of reproduction. The suit against the federal agency was filed in the United States District Court for the District of South Carolina. The Surfrider Foundation is represented by Steve Mashuda and Brettny Hardy at Earthjustice.
Maine Beach Access - The Maine Chapter has engaged in litigation alongside the Town of Kennebunkport over the Goose Rocks Beach access. The Chapter has also engaged in separate litigation involving Secret Beach and the Town of Eastport. The Eastport litigation allowed Surfrider to have a voice before the highest court in the state, the Maine Law Court, which granted an expansive interpretation of the Colonial Ordinance of 1647 to allow recreational activity. For Kennebunkport, Surfrider submitted an appellee’s brief arguing for the Court to take this opportunity to extend the trial court’s holding to all of Goose Rocks Beach, to hold that the Town owns wet and dry portions of the beach, as well as every other beach in Maine. The Law Court heard oral argument on May 15, 2019, and the parties now await its decision.
Texas Open Beaches Act - In 2009, 77% of Texans voted to include the Texas Open Beaches Act (“TXOBA”) into the state Bill of Rights through the Prop 9 Constitutional Amendment. The TXOBA is the strongest beach access legislation in the nation, enacted in 1959. The legislation was recently attacked in Severance v. Patterson case by the Texas Supreme Court. Surfrider Texas Chapters are now mobilizing to defend their right to get to the beach through the Brannan v. State of Texas case and other means.
Martin's Beach (2018) - Surfrider Foundation won a heated legal battle at the San Mateo Superior Court when Judge Barbara Mallach ruled in favor of Surfrider's arguments that the gates, change in signage and security guards added to Martin's Beach constituted “development” under the California Coastal Act and thereby requires a Coastal Development Permit (“CDP”). The offending property owner, Vinod Khosla, billionaire venture capitalist, was ordered to “cease preventing public from accessing and using the water” unless and until a CDP is obtained. Khosla appealed the case through the California courts, which unanimously ruled against him, and then petitioned for the U.S. Supreme Court to hear the case. In October 2018, the U.S. Supreme Court denied the petition for writ of certiorari and effectively ended the case, finalizing the ruling in favor of beach access.
Kyo Ya Zoning Variance (2015) - Surfrider Foundation Oahu Chapter led a multi-faceted campaign to protect the integrity of conservation zoning requirements for Waikiki Beach, resulting in strong precedent from the Hawaii Supreme Court. Surfrider Foundation challenged the zoning variance at every level, until in September 2015 the state's highest court struck down the Kyo Ya Resort and Hotel's zoning variance proposal that would have expanded the hotel 60 feet into the setback area and eight-fold in height to affect the protected viewshed in the area. The Supreme Court upheld the coastal preservation arguments of Surfrider Foundation, Hawaii’s Thousand Friends, Ka Iwi Coalition and KAHEA against the coastal setback variance requested by Kyo Ya in 2010.
Oil Dispersant Litigation (2013) - Surfrider engaged in nationwide litigation to protect water quality and recreational opportunities from the negative impacts of oil spill dispersants. After the Deepwater Horizon Oil Spill in the Gulf, almost 2 million gallons of toxic dispersants were used, including the chemical Corexit, which has been banned in the United Kingdom. Surfrider, along with Center for Biological Diversity and Pacific Environment, asked the EPA to test these chemical dispersants to ensure compliance with the Clean Water Act and the Endangered Species Act.
Strands Beach Access (2011) - Surfrider Foundation won a major victory after a full trial against the City of Dana Point in May of 2011 to secure full beach access at the Strands Beach in Southern California. The court held that the City of Dana Point’s public nuisance ordinance requiring locked gates and restrictive hours on beach access at the Strands main beach access trail be set aside. This case was appealed, but the City reached a settlement with the California Coastal Commission in April of 2016.
Florida REACH 8 Victory (2009) - On March 3, 2009, Surfrider Foundation set precedent to reform beach management practices, not only within the state of Florida, but throughout the nation. After an in-depth trial that lasted several,Administrative Law Judge Robert E. Meale ruled in favor of Plaintiff Surfrider Foundation and denied the town of Palm Beach a Joint Coastal Permit for the REACH 8 beach fill project because of the potential to harm environmental and recreational resources.
Ponte Vedra Beach Access in Florida (2006) - The Surfrider Foundation won a lawsuit regarding blocked beach access points in Ponte Vedra, Florida. In this case, the number of perpendicular beach access sites was adequate, but the ability to use the sites was severely limited by a lack of nearby parking spots.
New Jersey Beach Access in the Borough of Deal (1994) - In the case, Surfrider Foundation v. Borough of Deal, the New Jersey Chapters were able to fight to ensure beach access for surfers in the Borough of Deal. Attorney Al Ferguson filed the suit on behalf of Surfrider Foundation and named Plaintiff Mario Kinkela, a Long Branch surf shop owner. The suit pressured Borough Commissioners to amend their initial restrictive ordinance and fully allow surfing again. This lawsuit sent a signal to other New Jersey towns not to be restrictive of surfer's rights to access.
Humboldt Pulp Mill Victory (1991) - The Surfrider Foundation won the second largest Clean Water Act lawsuit in United States history against two pulp mills in Humboldt County, California. As a result of this suit, one of these mills, the Louisiana Pacific mill, became the only pulp mill in North America to begin producing totally chlorine-free (“TCF”) paper.
Clean Water - The goal of Surfrider’s Clean Water Initiative is to reduce ocean pollution so it is safe to surf, swim and play in the ocean. The water quality at our beaches is threatened by pollution from urban and agricultural runoff, sewage spills and overflows, and waste discharged into the ocean by industry, sewage treatment plants and power plants. Surfrider is advocating for continued federal funding for the BEACH Act, which supports beach water quality monitoring and public notification programs in coastal states. We are also supporting the EPA in their administrative rulemaking process to clarify the definition of “Waters of the US” (“WOTUS”) to restore Clean Water Act protections for intermittent streams and wetlands.
Not the Answer - The goal of Surfrider Foundation’s Not the Answer campaign is to stop any new offshore drilling. With the Gulf Spill of 2010, fundamental flaws in offshore energy permitting were also brought to light, in addition to the inadequacies of oil spill response plans. Advocacy for legislation to stop new drilling and tighten drilling regulations, as well as opposition to any new drilling bills, will work to accomplish Surfrider’s objectives within the NTA campaign.
Plastic Pollution - The Rise Above Plastics campaigns that have found success with plastic bag bans across the nation have risen up to be recognized at the federal level. However, there may not be significant movement on this issue at the federal level before more geographically diverse localities and states show interest in addressing single-use plastics, including banning plastic bags. Surfrider works at the federal level to support laws that address prevention and reduction of plastic ocean pollution, such as the Microbead-Free Waters Act.
Managing Coastal Armoring and Climate Change Adaptation in the 21st Century - Stanford Law School recently held a series of workshops for legal, technical, and policy experts to formulate recommendations on managing seawall and coastal armoring policy in the face of sea level rise. This is particularly important to Surfrider Foundation's efforts because “seawalls kill beaches”, which is demonstrated by the science reviewed in the report. Ultimately, the findings result in four key recommendations: (1) Advance stronger state laws and policies that discourage coastal armoring, (2) Ensure local coastal planning mechanisms are used to incorporate sustainable adaptation strategies and to discourage armoring, (3) Promote insurance policies and post-disaster redevelopment policies that do not promote risky development, and (4) Pursue relocation and retreat on public and private lands. Read the LegalPlanet Blog by Megan Herzog for more information.
Senate Ocean Caucus Briefing Book to Address Marine Plastic Pollution - Surfrider Foundation and the UCLA Frank G. Wells Environmental Law Clinic published the 2013 Briefing Book on Federal Law and Policy Solutions to Address Marine Plastic Pollution. In addition to detailing the harms of plastic pollution to wildlife, economy, and resources, the booklet also offers three sound policy solutions that have been tested at the local and state levels.
National Ocean Policy Law Review Article - In 2012, the Ocean & Coastal Law Journal from Maine Law School published an article by Surfrider Foundation's Legal Director, entitled “The U.S. National Ocean Policy: One Small Step for National Waters, but Will It Be the Giant Leap Needed for Our Blue Planet?” This article explains what the National Ocean Policy is, how it builds upon and is distinguished from past ocean governance laws, and what the NOP will need to succeed in effectively managing our coastal resources and preserving the value of our coasts, including the recreational and ecological services it provides. Namely, the NOP must overcome challenges related to the funding to execute the national objectives of the policy, procurement of political will in Congress to codify and/or support the NOP, and reconciling the top-down policy with the critical need to take cues from regional and local stakeholders.
Legal Handbook - This Legal Handbook is an informational resource aimed at enabling the Surfrider activist to further the mission of protection and enjoyment of the world's oceans, waves and beaches. It is important to know and understand the legal rights we have in defending the environment and our right to enjoy it. Cases involving beach preservation, water quality and protection of special places usually deal with established environmental laws such as National Environmental Protection Act (NEPA), the Clean Water Act (CWA), Coastal Zone Management Act (CZMA), Endangered Species Act (ESA), etc…This manual is meant to serve as an overview of the laws and legal concepts that Surfrider Foundation is most likely to encounter in future legal battles.
2010 Conservation Voting Chart: The Conservation Voting Chart tracks the voting record of the members of the California Coastal Commission. The chart is authored and produced by a coalition of environmental groups, including the Surfrider Foundation, Sierra Club, League for Coastal Protection, Coastal Protection Network and the California Coastkeeper Alliance. The chart provides critical insight into Commissioner performance relating to its impact on natural coastal resources and their potential to set important statewide precedents.
Check out the latest tracking of California Coastal Commission votes on the new ActCoastal website.
Are you an attorney? Join our Legal Issues Team(“LIT”)! The LIT is Surfrider’s network of state certified, pro-bono counsel. We call upon LIT members when issues arise based on a member's geographic location, bar certification, expertise, and interests. Email resume and statement of interest to email@example.com.
Surf Protection 12 • 02 • 2021