Sand for the people: the continuing controversy over public access to Florida's beaches.

• Author: Kranz, Erika

Lola Carlisle, an Atlanta resident visiting Seagrove, on the Florida Panhandle's Emerald Coast in July 2007, thought her summer vacation was going to end up as a trip to jail after her children were building sandcastles on property a nearby homeowner claimed was private. (1) She and her family had been vacationing in Seagrove for a decade but had never before been told to move off of "private" beach, and she questioned whether the white sand upon which her family had laid its towels was really private. (2) However, when sheriff 's deputies arrived at the scene, Carlisle complied with the officers' order that they move several hundred feet to a nearby public area rather than risk arrest. (3) Less fortunate was Eduardo Gonzalez, another beachgoer who that same day in the same county was arrested for trespassing on a private beach after he refused to move to public sand only three feet away. (4)

Florida is known worldwide for snowy-white beaches that provide peace, quiet, and natural beauty and also anchor the tourism that constitutes an essential part of the state's economy. Yet over the last two decades, access to the state's 1,200 miles of coastline has come under stress. (5) Beachgoers have encountered "No Trespassing" signs on beaches previously presumed to be open to public access; others have been asked to leave by landowners, private security guards, or the police as above. While these incidents remain fairly uncommon, they have sensationalized a growing conflict between landowners desiring privacy and security and those who feel the beach should be, and always has been, free for public use.

While many beach visitors believe that public sand begins seaward of the dune line or the line where vegetation ends and bare sand starts, regardless of whether the upland property owner is a private individual or public entity, in Florida, the part of the beach falling landward of the mean high water mark is typically owned by the owner of the adjacent lot. The only publicly owned part of the beach is that part falling between the mean high and low water lines: the foreshore region. However, while beachfront property owners in Florida generally have title to the dry sand beach down to the average high tide line, ownership of this property does not necessarily mean that the exclusion-of-others stick is within the bundle of rights attached to this part of the property. Title to any property may be subject to explicit or implied easements, limitations based on traditional right of use, or common law prohibitions of activities considered nuisances. (6) Beachfront land is no different: The right to this property is far from absolute.

At the root of the access issue are two competing values deeply entrenched in American society: The notion that private property may be held to the exclusion of others, and the tradition of allowing the nation's coastlines to be free for public use. Some property owners who paid high prices to live adjacent to the beach believe that their deeds entitle them to limit access to the sand within their property lines. (7) Yet tourists and locals often feel that Florida's sand is a public resource belonging to none, open to all. The issue is especially important in a state where beaches are a large part of the coastline and an anchor of the tourism-based economy.

The following discussion will outline various theories used in Florida and in other states to preserve or limit the public's access to the beach, examine the successes and failures of these doctrines, and assess the potential for these tools to be useful to Florida in a future effort to preserve public access to beaches around the state. Unfortunately, no perfect tool yet exists in the state; Florida's best chance for a broadly applicable tool for beach access is to follow Oregon's lead by expanding the customary use doctrine, which the state has already recognized in a limited way. Without such measures, the state and private property owners could be subjected to imperfect and expensive case-by-case litigation or property condemnations.

State of the Coasts

According to the state's Department of Environmental Protection, at least 60 percent of Florida beaches are private, offering little or no public access; many beachfront homeowners have claimed these beaches as their own. (8) While Florida law requires the state to ensure "the public's right to reasonable access to beaches," (9) over the last two decades, local governments have routinely ceded public access points to developers, allowing waterfront communities to exclude others from the dry sand beach in exchange for the significant tax revenues these communities provide. (10) While this move can increase property values and benefit private landowners, other Florida residents and visitors to the state may find themselves without sand to sit upon.

In some ways, not much has changed over the last three centuries--the earliest settlements in America were beachfront property; St. Augustine, founded in 1565, is a prime example. (11) Like their modern counterparts, early Americans enjoyed swimming and walking along the beach. (12) Over time, working class and upper class beach towns popped up along the coast. (13) Railroads made Florida's beaches accessible to tourists from the north as far south as Miami by the late 19th century; the development of coastal roads continued this trend. (14) What has changed over time is the level of competition for use of the Florida coastline and the level of public access to it, as more coastal development means less open space and the need for more dedicated beach access points. (15)

Florida is far from the only state struggling with the issue of private use versus public access to its beaches. North Carolina recently experienced litigation similar to what recent incidents along the Emerald Coast will likely trigger. In Fabrikant v. Currituck County, 210 S.E.2d 19 (N.C. App. 2005), residents of an exclusive beachfront community on the northern Outer Banks sought to establish that their title to the dry sand beach adjoining their properties gave them the right to exclude others from this portion of the beach. (16) The state argued that the public had acquired the right to use the dry sand beach through customary use, an expanded public trust doctrine, implied dedication, or prescriptive use. (17) A Connecticut resident successfully sued a neighboring town for denying him access to that town's beach; the state's Supreme Court ruled that the beach park could not be closed off to nonresidents. (18) A California court recently responded to private landowners' concerns by overturning the California Coastal Commission's order requiring coastal residents to remove gates and "No Trespassing" signs at a Malibu beach. (19) Examining other states' approaches sheds light on Florida's options for better ensuring beach access in the future.

Public Trust Doctrine and the Wet Sand Beach

The public trust doctrine has its roots in Roman laws that required that the seas and tidal land remain open to all for fishing and navigation. As history tells, in A.D. 530, the Roman Emperor Justinian asked his legal scholars to codify the empire's laws; the resulting Institutes of Justinian included the provision that "by the law of nature these things are common to all mankind; the air, running water, the sea and consequently the shores of the sea." Thus was born the idea of a public trust seashore. (20) The idea has been passed down through the legal systems of many other nations. The United States and Florida inherited it as part of our country's English common law legacy. (21) The doctrine was first incorporated into American law during the Revolutionary War, and the Supreme Court's first assertion of the doctrine to establish federal sovereignty over navigable waters came with Martin v. Waddell, 41 U.S. 367 (1842). (22) Today, nearly every state's laws have incorporated the doctrine, though variation between states exists.

Florida's public trust ownership began with statehood in 1845, when the state took title to all sovereign lands within its jurisdiction not expressly granted to private interests by the Spanish government prior to the 1819 Treaty of Cession or conveyed by the federal government while Florida remained a territory. (23) With control over public trust lands came the state's responsibility to ensure that these lands remain free for public use. (24)

It must be noted that the part of the beach under contention is the dry sand beach, that part of the beach falling above the mean high water mark, calculated as an average of high tides over a number of years. The federal rule for calculating this all-important line is determined by "the average height of all waters over a period of 18.6 years." (25) The wet sand beach falling seaward of this line is governed by the public trust doctrine. This doctrine holds that these parts of the beach that have traditionally been used for travel, hunting, fishing, and more recently recreation are held by the state in trust for the use of its citizens. (26) Like the beds of navigable rivers, private landowners may not hold this part of the beach to the exclusion of others. Following the federal rule for measuring the mean high water mark, Florida's constitution asserts state ownership of beaches below these "mean high water lines ... in trust for all the people." (27)

There is more to public use of this wet sand foreshore, however, than a stated right to do so. To exercise that right, the public must have access. Unless the public enters solely at public access points such as public beaches, this means crossing private property; thus, without a public right of access across private dry sand beach, the wet sand beach remains a public resource in name only. This right of access includes two factors. (28) First, the public must have access to the beach from public roads--perpendicular access. Secondly, high tides completely...