Making Waves: The Legal Fight Over Beach Access

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Franco Cogoli / Corbis

In many states, from New Jersey to Hawaii, beachgoers and property owners clash over the right of beach access

When the weather gets hot, ordinary folks go to the beach — and well-heeled coastal-property owners try to keep them away. Summer is high season for fights over beach access, and the Supreme Court ventured into those choppy waters earlier this week with a major ruling in a Florida beach case. It did the right thing, but the ruling is not going to stop the fighting.

The case involved a rare situation: newly created beachfront property. To repair damage done by hurricanes, two Florida cities plan to add sand to rebuild parts of the shoreline that are badly eroded. Under state law, the new land would be public property.

Nearby beachfront-property owners might have shown some gratitude, since the restoration would, theoretically at least, protect them from the next hurricane. Instead, they sued. If the new land was added, their property would no longer touch the water — there would be a strip of land separating their property from the ocean — and it would open the way for unpropertied hordes to descend with beach towels and start frolicking. The owners claimed the additions would be a "taking" of their property, in violation of the Fifth Amendment.

The Supreme Court rejected the suit by an 8-0 vote. There was no taking, it held, because the owners would still own the same property they always had and they would still have access to the beach. There is no right, the court said, to have your property continue to touch the water. (Outgoing Justice John Paul Stevens, who owns a beachfront condo in Florida, did not participate.)

The decision was a victory for public beach access but a narrow one. Unlike the Florida case, which had a federal-constitutional issue, property-rights disputes are generally decided under state law, so beach battles are being waged state by state. There is a long-standing recognition in many states that the beaches belong to everyone — and that everyone should have a right to get to them and enjoy them. In practice, however, exercising this right is not always easy.

In Hawaii, the state's pristine beaches are a public trust, but beachgoers complain that access is often restricted by nearby property owners. There have been fights over gates being put up and, most recently, strategic planting of vegetation. This month, Governor Linda Lingle signed a law making it illegal for property owners to plant vegetation to keep people away from the beach. The state is committed to keeping clear a "lateral beach transit corridor" — in other words, a path for the public to get to the beach.

New Jersey has a tradition of beach access dating back to colonial times. Its courts have long recognized a "public trust doctrine" under which the public has a broad right of reasonable access to the sea. It includes a right to walk along the beach and swim in the water — and, under some circumstances, to walk over nearby private land to get to the water.

But the state's beach towns have been resourceful, the Associated Press recently reported, in finding ways of keeping people away. One town built a stone seawall to keep the public out. Others rely on a more time-honored means of exclusion: keeping parking for outsiders extremely limited.

New Jersey's Department of Environmental Protection this month proposed scrapping beach-access rules that the coastal towns consider too onerous like requirements to make parking and restrooms available. In keeping with the deregulatory emphasis of the state's newly elected Republican governor Chris Christie, the agency would substitute more "reasonable" requirements. Many property owners are pleased, but some beachgoers worry the new rules will make it easier to deny nonresidents access.

On the West Coast, the California Coastal Commission has for years had its hands full trying to stop localities along the Pacific from putting up fences, misleading signs and vegetation to keep people from accessing the beach. In May, Dana Point, an Orange County coastal city, sued the commission in a fight over gates that cut off access to the city's beaches. This month, an environmental group sued Dana Point to get the gates taken down.

Popular support for the right of beach access seems to be strong. In Texas last fall, a referendum to put beach-access rights in the state constitution passed with more than 75% of the vote. But there is one notable constituency that takes a much less favorable view of the issue: coastal-property owners. And that virtually guarantees that the fights over access will be around for many summers to come.

Cohen, a lawyer, is a former TIME writer and a former member of the New York Times editorial board.