A key thinker and writer about the commons for many years, Rowe is a former Senate aide, editor of the Washington Monthly and writer at the Christian Science Monitor. He hosts a public affairs show on KWMR-FM in West Marin County.
Surf's up! A string of court victories reaffirms the public's right to enjoy beaches in the U.S.
| by Jonathan Rowe
Some seventy percent of the earth’s surface consists of oceans, and we all own it. But getting access to what we own isn’t always easy. Or even possible.
Here’s the basic math. Half the population of the U.S. lives within 50 miles of the coast. But 70% of coastal land is privately owned; and the percentage is increasing all the time. A relatively small group of private owners constitutes a blockade to a much larger group of common owners. What gives?
If this sounds like a cue for the lawyers to enter stage right and left…well, it is. Beachfront access has become a heated issue from California to Maine, and the Great Lakes states in between. There have been major victories for the public, most recently in Michigan and New Jersey. But private property fundamentalists have mounted a predictable reaction, and the Supreme Court is not inhospitable to their cause. The cast of characters moreover is not always what one might expect.
Coastal access is one arena in which the weight of precedent stands squarely on the commoners’ side. The “public trust” doctrine, which goes back to Roman times, declares that waterways are inherently public, and cannot be sold even if the sovereign wants to. The first U.S. court to articulate the public trust was the New Jersey Supreme Court, in a case involving oyster beds. “[W]here the tide ebbs and flows, the ports, the bays, the coasts of the sea, including both the water and the land under the water…are common to all the people,” the N.J. court said in the 19th-century case of Arnold v Mundy. Each person, it added, “has a right to use them according to his pleasure.”
Grab your swimsuits, folks.
The U.S. Supreme Court embraced the doctrine in 1892 in Illinois Central Railroad v. Illinois, which involved the attempt of the Illinois legislature to transfer shoreline along Lake Michigan to that corporation. Public trust lands are “held in trust for public uses,” the Court said; and these uses are “always paramount.” The railroad didn’t get the land. In another case, the Supreme Court embraced the “ebb and flow” rule, which defines the area of public access to that defined by high and low tides.
So far so good. But this still leaves the problem of private owners blocking access to beaches to begin with. What good does it do to own a beach, if a row of private houses stands in the way?
In California the math is especially thorny, as is the sociology. Some 80% of the state’s residents live within an hour’s drive of the ocean, and not a few of them have an ardor for the surf and sand. At the same time, there are famously wealthy people here who buy beachfront homes and are not thrilled at the thought of hoi polloi swimming down below their decks. One surfer told the New York Times of the homeowner who tried to kick him off the beach. The man said “he did not like to look out his window and see people swimming, because it blocked his view,” the surfer recalled.
Thirty years ago, California voters declared access to beaches a public right, and the state’s Coastal Commission has been carrying out this mandate step by arduous step. Probably the most famous case involved David Geffen, the media big shot, who has a home in Malibu with a beachfront almost as long as a football field. Back in 1983, Geffen promised to provide public access through his land, in exchange for permission to build servant quarters. Then he reneged, and argued this would be a “taking” of his property without compensation. The case dragged on. Finally, in April of this year, Geffen relented.
Another access blocker has been Wendy McCaw, a billionaire and environmental donor who owns the Santa Barbara News-Press, and whose beachfront in Santa Barbara county is 500 feet long. “There needs to be more effort toward protecting the embattled wildlife calling our beaches home,” McCaw said, “rather than focusing on how to pack more humans with their destructive ways into those sensitive habitats.”
And environmentalists wonder why a lot of people regard them as selfish elitists.
But the Coastal Commission is pressing on. In August it banned no-trespassing signs and motorized beach patrols along Broad Beach in Malibu. Meanwhile, in New Jersey, the state Supreme Court last month ordered a private beach club with a $700.00 seasonal membership fee to grant access to the public for $3.00 a day.
Three days later, the Michigan Supreme Court affirmed that the public has the right to stroll along the beach, and that beachfront owners have no right to stop them. This opens up the state’s 3,200 miles of Great Lakes shoreline to public use. Walking on the beach, the court said, is “inherent in the exercise of traditionally-protected rights.” The decision did not address the question of access, only the right of use.
Certainly, property owners are entitled to rules that protect against egregious nuisances, such as noise, crowding and trash. It’s reasonable not to want boom boxes and beach parties behind one’s house late into the night. (In Geffen’s case, the public-access path will be locked at night.) But common owners have rights too, and it is fitting that courts finally are starting to recognize that, in some states at least.
It is likely that one of these cases will end up before the U.S. Supreme Court before long. So here’s a question for the Senators to ask Harriet Miers, the President’s nominee. “You say you believe that judges should support traditional values, and apply the law as written? Well, what about traditional values included in the common law? What about the public trust?”