DEPARTMENT OF PUBLIC POLICY

POL 663: Ocean Policy and Law

Lecture 3: The Coast Public Access to Beaches and Shores Introduction
So, have you ever thought about the legal right of access when you go to the beach in the summer? Maybe, maybe not. I remember my first introduction when I was working as a lifeguard in my younger years. I was employed at a private beach, and the manager approached me and pointed out some people who were walking ankle-deep in the water. Apparently they had started from some access point outside the boundaries of the private beach. However, they were not members of the beach association; so essentially people who were nonmembers were wading in water that was reserved for private members of the beach club. Immediately the beach manager approached me and stated, something has to be done, you have to do something! I thought to myself, what can I do? Or more importantly I wondered what legal rights do these people have, if any, in comparison to the legal rights of the members of the association? This was an early introduction for me into the murky waters of public access to the shoreline. I often think of this experience when I study issues related to public access rights in the coastline. I find recent cases dealing with access rights to provide excellent examples of the expectations amongst those who utilize our coastal resources; often the expectations of the users do not align with the legal rights between user groups. Moreover, when user conflicts arise, I find governments are often at a disadvantage when trying to balance these conflicts. Before delving into the legal frameworks that apply to public access rights, we can consider the policy setting in which public access to ocean resources exists. With this broader policy understanding understood, we are well placed to begin understanding the legal frameworks in the context of policy options (and ultimately limitations).

The Policy Setting for Public Access

We can begin a thought experiment about public access to coastal resources with a premise that suggests government serves multiple functions and interests when it comes to coastal resources. For example, we know government is the owner of submerged lands (tidal waters) and holds that ownership in trust for the public (under the public trust doctrine mentioned in the earlier lecture). Thus, in order for government to fulfill its

Page 2 of 11 obligations under the public trust, providing public access to coastal resources is an important direct policy goal. Many coastal municipalities also operate on a real estate property tax revenue structure. Thus, coastal towns in many areas have historically catered to coastal development to support local revenues; high priced coastal homes provide high appraisals and thus higher property tax revenues per unit. In this way, governments indirectly support private landowner rights in so much as those rights create demand for high priced coastal properties in the local community. The multiple goals of government mentioned above providing public access to coastal areas while creating incentives for private coastal development can result in a direct conflict between user groups with the public on one side of the conflict and private homeowners on the other. Putting aside the impact legal frameworks might have on this conflict for the moment we can see how the divergent public and private interests can muddy the policy goals of government. For example, does government advance the public interests for access to the coastal zone where doing so might negatively impact private interests (and thus impact demand for and ultimately valuations of coastal property)? Or does government advance private interests in a way that inhibits public capacity to access the shoreline? As you might discern from the questions posed above, the policy setting for public access from the standpoint of government is not an easy setting to understand. There are mixed policy signals that can influence the development, implementation, and evaluation of different policy approaches. Understanding the competing goals that can exist is an important foundation from which public access to the shoreline must be understood by the policy analyst. Finding the right mix of public access goals while also respecting the benefits of private coastal ownership is, in many ways, the ultimate policy goal in this area. With this basic policy setting understanding under our belt, we can look at some of the legal frameworks that impact this setting.

Legal Frameworks Influencing Public Access Rights

Given what has been stated in the introduction to this lecture about the policy setting, we can now take that information and begin to overlay legal frameworks to help see how certain policy goals are affected by law. Remember, we are dealing with access rights, which for the most part are closely tied to physical property or specific geographic space. This means we will be examining property rights between public and private interests in the coastal zone. As such, property law will be one major legal framework that applies to our analysis. In addition, constitutional law will be another legal framework because we have a situation where government is acting to impact private citizen rights (in this case private property rights of citizens). Since the U.S. Constitution protects private citizens against government conduct, and because public access to the shore includes government actions, constitutional principles are at stake.

Page 3 of 11 Let us begin by recalling our hierarchy of laws from the previous lecture material represented in the figure here:

We cite this hierarchy now in order to place the two major kinds of legal frameworks applicable to public access into perspective: constitutional law and property law. We know from the hierarchy that constitutional law is the supreme law of the land, meaning any law (statute) or regulation that directly conflicts1 with constitutional law principles is unconstitutional and therefore invalid. Thus, for example, a government action that attempts to create public access in such a way that violates a constitutional protection of citizen rights will be found to be unconstitutional and thus invalid. As such, we can collective scrap policy options for public access that result in unconstitutional applications of government power; the constitutional legal framework overlay on our policy approach in this example shows us that our policy approach is invalid, even if the approach is a really good idea. Most property law principles are established as either common law principles (unwritten law that is common to our heritage) or embodied in legislatively passed statutes. Sometimes a property law principle can also be enshrined in constitutional law,
1

The question of exactly what is a direct conflict is not an easy question to answer. Conflict of Laws is an entire legal subject onto itself. However, we can note that conflicts in law are judged primarily by the judicial branch of government, at least where the conflict question is being reviewed post facto (after the fact). In addition, we can also note that courts go out of their way to harmonize potential conflicts of law (find no direct conflict) because a cannon of judicial review is that legislatures do not pass laws that are meant to be in conflict with other laws or constitutional principles (i.e., the legislature does not purposefully attempt to pass invalid laws). That being said, conflicts do arise and courts do find either an entire law (rare) or the application of the law in a particular instance (more common) is in direct conflict with a superior law.

Page 4 of 11 for example where the property right is seen as a fundamental right to citizens. With the exception of constitutionally enshrined property rights, most property law (statutory or common law) is subservient to constitutional principles. Thus, if a legislature were to pass a property law that directly conflicted with a constitutional principle, then that law would generally be found to be unconstitutional. Through the use of our hierarchy of laws, we have a starting point in which to understand the influence of legal frameworks on policy choices about public access rights (and other related rights in coastal areas). So how do these two legal frameworks constitutional law and property law work in practice? To begin, we need to understand that when government actions are based on advancing public rights (such as access to a public resource like the ocean), the government is engaging in a fundamental state function for the benefit of its citizens (recall the public trust doctrine). Thus, it can be argued that the governments actions are constitutional in a sense because they are based on Tenth Amendment reserved powers to the states under the U.S. Constitution. Of course, when that government action impacts a fundamental property right (in this case real estate) of private citizens, then the application of that government power is checked by the Fifth Amendment of the U.S. Constitution (the takings prohibition), which limits governments actions on private property rights. Visually this interaction of constitutional law principles is represented here:

In the figure we see a spectrum (or continuum) where two constitutional principles are placed on opposite ends of the spectrum. On one end is the 10th Amendment police power of the state to enact laws for the legitimate health, safety, and welfare of its citizenry. On the other end is the takings prohibition of the 5th Amendment. From a policy standpoint, where a government action is seen as clearly on the right side of the spectrum (in the green outside of the yellow box), then the action can be said to be constitutional. However, where the action is in the red on the far left of the spectrum, then the government action can be said to be unconstitutional. Finally, where the action is

Page 5 of 11 in the yellow box, then the validity of the action (whether it is constitutional or unconstitutional) is unclear. Most of the materials on public access really boil down to a consideration of the above spectrum, at least when we are focused on the affect of legal frameworks on our policy options. We can use the above figure as a conceptual overlay to aid us in discussing policy options for public access. Where the policy option exists clearly in the green area of the figure and outside the yellow box, we are (for the most part) safely within governments legal rights and safely outside of potential legal pitfalls as least as far as 5th Amendment constitutional questions are concerned. Where we are far to the left and in the red territory, our policy option is dangerously afoul of constitutional rights. Where our policy alternative sits in the yellow box, we are in a sort of quagmire in that we do not have a clear indication of the legal validity of our proposed action. There are a great number of details that need to be discussed in order to really understand the usefulness of the spectrum identified in the above figure. For example, what kinds of actions (policy proposals) are clearly on the far right (in the green) or far left (in the red) of the spectrum? To answer this question we look to case law, which is based on judicial interpretations of constitutional rights. Case law helps us know what facts lead to a violation of a constitutional principle, and alternatively, what facts lead to a valid exercise of police power. Over time, as more cases are decided, we can even begin to shrink the yellow box in the center of the spectrum because newer cases interpret different facts and thus lessen the kinds of actions (policy options) that are currently unknown in terms of their impact on constitutional rights. This is one main reason why case law is an important way of understanding legal frameworks; by reading cases (and keeping up on new cases) we get a clearer sense of the lawfulness of different kinds of government actions. We dont have the time to fully engage in an understanding of case law (for example, the different kinds of precedents based on the level of appeals court hearing the case), but this information is available and discussed in sufficient detail in the Environmental Law (POL661) offered by The Department of Public Policy.2 Now with some understanding of the major legal frameworks affecting decisions about public access, and also carrying forward the policy setting that applies to public access issues (governments multiple roles and sometimes competing incentives), we can now turn to specific property laws that impact access (the main parts of the materials in the Christie reading).

Applying Legal Frameworks to Public Access

The main legal doctrines employed to justify, maintain, or create public access to ocean resources, as noted in the readings, are prescription, dedication, customary use, and
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A more detailed explanation on both common law and case law principles can be found in the following lecture materials, Finding the Law, from POL661: Environmental Law: http://www.scribd.com/doc/119182158/POL661-Lecture-3

Page 6 of 11 public trust. In order to understand these concepts, we will use the following visual representation as a starting point in discussing each framework:

The above figure notes the main geographic areas collectively making up what is referred to as the coastal zone. Generally, private rights in the coastal zone extend from some defined upland area, through a line of vegetation, and up until the beginning of the intertidal zone, generally demarcated as the mean high tide line.3 This is represented in the figure by the black dotted box that surrounds the figure of the home, extending from the upland area through the line of vegetation. The orange box entitled Access is meant to represent an access point for the public in order to reach the shoreline. We will use this general figure to help explain the different legal frameworks that are often used to provide public access to the shoreline.

Easement By Prescription
Prescription is a legal term that relates to a certain type of easement (another legal term). In most states, access to some portion of private property can be obtained if the following is shown:
3

Remember, certain coastal states, like Massachusetts for instance, use the mean low tide line as the extent of private rights in coastal land.

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Actual use of the portion of the property from which the right is being claimed (the public is using the specific portion of the property for access to the shoreline); The public use is continuous for a specific period of time (usually from 5 to 20 years). The use is against the interest of the owner (i.e., the use must be adverse to the owners wishes); and The use of the property is open, meaning it can be found out through a reasonable inspection of the property.

If the above requirements are met, then a legal right to some portion of private property can be obtained by the legal doctrine of prescription. Using the figure above, the prescriptive easement might include the area denoted as Access in orange in the figure. To create a public right of access through prescription, then the public at-large must use the access point through the private property the manner described: continuous use of the private property that is open and adverse to the private landowners interests minimally for the prescribed period of time (between 5 and 20 years depending on the coastal state). If all of these conditions are met, then the public may achieve the easement to the coastal zone by prescription. Consider the public policy implications for such access to coastal resources. Certainly the legal doctrine of prescription can allow for the creation and maintenance of public access to coastal areas, but it does so at the expense of private ownership rights. Beyond any discussion of the constitutionality of such actions (for example, does the government support of such a public right bring us closer to the 5th Amendment red area on our spectrum of takings vs. police power above), we can simply consider the practical consequences; private landowners who cannot ensure the validity of their title to the property will be less inclined to value such property as high as they might otherwise. In other words, such legal doctrines as prescription may indeed provide for public access to the shoreline, but the doctrine does so at the expense of the private real estate market, undermining an important component to our national economic system. And when underlying valuations of private coastal properties are compromised so too are the local property tax revenues that are based on such valuations. If we think of property taxes as a redistribution of wealth to support important local social programs (public education, public services, etc.), then we can see how such a legal instrument might endanger this system of government.

Implied Dedication
Have you ever been told to speak your mind? This is critical when it comes to implied dedications, because if you see people using your property, and you fail to make a stink, you may have unwittingly given those users a legal right to use your property for access (at least under this legal doctrine).

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As the term might suggest, one engages in an implied dedication when they allow another (others) to use a portion of their property, either with intent, or without. If a landowner intends to allow another to use the property for access, this is known as dedication by acquiescence (the landowner has acquiesced to the use of the land). Because the owner intends to allow the use, there is no specific length of time that need be shown. The other form of implied dedication is that by adverse use for the prescriptive period. This is like the prescription above, but based on the intent of the public (i.e., the court will look to the intent of the public to use the property, rather than looking to the intent of the landowner); an implied dedication through adverse use means that the public intended to use the property against the private landowners will, irrespective of the landowners willingness to provide access. If either form of implied dedication is shown, the public (rather than an individual) receives the right to traverse the property in order to gain access to a water resource. As you can imagine, the very same policy issues described above under the easement by prescription section can apply to this form of creating public access over a private parcel of land.

Public Trust Doctrine

Recall the Public Trust Doctrine; it prevents the public interest in water resources from being alienated (it preserves the public right to access water resources for certain purposes you can recall this from the earlier lecture and materials). Well, if the doctrine protects the public interest in water resources, shouldnt it also protect the right of public access to those resources? Some states have used just this rationale to defend laws that allow public access to private uplands in order to access water resources. New Jersey is a prime example, where a fundamental PTD right to access waters was for recreation purposes. Thus the need to access the adjacent sandy beach area (even if private land) is connected to the purpose of the public trust doctrine; without allowing for such access, the publics right in the coastal zone is usurped.4 Other states (including Massachusetts) have found such attempts to extend PTD rights onto private lands an unconstitutional taking of private property. The main reason is the new uses stated (recreation, etc.) were not part of the original or traditional uses of the PTD (fishing, fowling, navigation).

Alternative Public Access: Creative Legal Framework Solutions

It is important to note that New Jersey extends its public trust doctrine rights to include recreational activities at the shore such as swimming and sunbathing (beyond the traditional fishing, fowling, and navigation). As such, access to the sandy shoreline as well as the water is implicit in order to exercise these expanded public trust doctrine rights.

Page 9 of 11 The legal frameworks mentioned above are examples of ways in which to justify public access to the shoreline. They are not the only methods of providing such access; for example, some states like California (and others now) have created opportunities for public access by making access conditional for building permit approval where private coastal landowners wish to improve their coastal properties. Consider the following visual example of how public access to the shoreline can be impeded by continuous development along the shoreline:

The public access to the shoreline has been effectively removed because private land ownership extends the entire length of the coastal area (the private ownership is continuous; where the private property line of Owner A ends, the private property line of Owner B begins and so on). This is precisely the situation that occurred in many Southern California coastal communities; the private land ownership is continuous for, sometimes, miles, leaving the public without regular access points to the shoreline. As a result, public access is effectively removed. California (highlighted in the Nollan case, which is a bit hard to understand in light of the holding5) decided to deal with this public access issue private property by private
5

The Nollan case reads conclusively that the attempt to condition the development of private coastal land on providing public access is a violation of constitutional principles, specifically the Fifth Amendment of the U.S. Constitution (essentially, Nollan suggests conditioning development of private land on creating public access moves up too far towards the left on our spectrum of takings vs. police power figure (too far into the red). However, this is really not the case. The problem in the Nollan case is that the

Page 10 of 11 property. Rather than looking to the traditional public access rights described above (prescription, implied dedication, etc.), California turned to its building permitting regime in coastal areas. When a private property that was deemed to exist in a coastal area submitted an application to develop (or redevelop) the land, the permit application was subject to an additional requirement: public access has to be created, if not already existing on the property, as a condition in approving the building permit. If the application does not provide for public access, then the permit can be denied on this ground. So, if you own coastal real estate in Southern California, and you want to improve the property by tearing down an old structure or adding on to an existing structure, then you must ensure that public access through your private property is part of the building plan. Over time this technique has been proven to be quite effective in establishing public access points along the California coastline. Today, much of Southern California looks like the following due to this measure:

government had argued the reason for conditioning the building permit on public access was to ensure the publics right to the view of the coastline. The U.S. Supreme Court noted there was not a sufficient nexus between physical access and view (one did not necessarily need to be provided with physical access to the shoreline in order to view the shoreline). After this case was decided, California changed its rationale for the permitting condition from ensuring the publics view to ensuring the publics access to the shoreline. Once this was done there was a clear nexus between the purpose of the regulation and the manner in which the regulation was carried out.

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Public access points dot the coastline adjacent to private properties. If we put our policy hats back on, we might see this method of creating access as a superior policy alternative when compared to the traditional legal methods described above. First, the access is created through the choice of the private landowner; it is only when the private owner decides to improve their property that the requirement of creating public access is triggered; because public access is initiated by the landowner through a decision to develop the property, there is a greater acceptance of the access by the landowner. Second, the requirement of allowing for public access is equally shared by all private coastal landowners who choose to improve their coastal properties; since the requirement is placed on all coastal development, the burden of creating public access is distributed amongst all coastal landowners. If we bring forward the main points from the Stone reading about equity and policy goals, we might find such equitable principles in the California example of developing public access. The point of this section is two-fold. First, our goal was to understand the, often, competing goals of public access and private ownership in the coastal zone. Second, we aimed at getting our heads around the legal frameworks that afford public access to the shoreline. Third, we desired to assess the relative merits of different public access frameworks as means of achieving the multiple policy goals of access, development, and utilization of coastal resources. We will be bringing forward these principles, both policy and legal, as we continue our exploration of ocean law and policy in this course. END OF SECTION.