Where the sea meets land.

• Author: Catala, Maria L.
• Position: Establishing public right to beach access

Each wave that we danced on at morning ebbs from us, And leaves us, at eve, on the bleak shore alone.

--Thomas Moore (2)

INTRODUCTION

Those who have been to Siesta Key, Florida, in the last couple of years have noticed the growing number of hotels and timeshares along the beach. (3) Some of these hotels start early in the morning putting up rows of chairs along the sandy part of their private beach in order to keep the public off of it. (4) The part of the beach these hotels claim as private is all of the soft, sandy part of the beach, essentially leaving a small, rock-hard portion where the tide has just receded from the night before, for members of the community and public to use. (5) This has started a war among public beach goers and private landowners in Sarasota County because, although portions of Siesta Key beach are privately owned, the public also customarily enjoys these parts of the beach. (6)

My husband and his family have been visiting Siesta Key beach for almost thirty years; he first took me there when we started dating, eager to share his favorite childhood pastime. (7) I had never been to Siesta Key, but had heard countless members of his family describe the smooth white sand and the clear blue water, filled with stingray, dolphins, fish, and kaleidoscope shells. (8) I can honestly say I have never witnessed a more beautiful view of the setting sun than from the shoreline at Siesta Key; because as that large ginger ball dips into the dark blue water at the earth's end, the sand on Siesta Key's shore seems even more whitened against the settling dusk. (9) It is the sand we come for. (10) Indeed, what makes Siesta Key Beach so unique is its sand. (11) It is white as snow, smooth, and as soft as flour. (12) Further, unlike the sand at other beaches in Florida (especially on the east coast), it stays cool all day long. (13)

Unfortunately, within the last several years, a well-known hotel chain was built along Siesta Key Beach. (14) Before this hotel was built, other hotels along the beach shared the beach with everyone, including the public. (15) However, this hotel started putting up chairs for its guests across the beach, as close to the water as possible, intending to block the public. (16) Consequently, when a member of the public tried to put down a chair nearby--whether it was in front of the hotel's row of chairs or in the midst of them--security personnel from the hotel would tell them to move. (17) Most people simply moved, however reluctantly, mumbling that they did not think anyone had the right to own the beach. (18) Still, one hotel's action triggered a ripple effect, spurring the other hotels along the beach--that had previously left space for the public along the shoreline--to also start pushing the public off the beach, because now too many people were concentrated on a single part of the beach. (19)

One morning, during one of our vacations to Siesta Key, my husband and I were two of the people this hotel told to get off its beach. (20) We got to the beach before the hotel set up its chairs, set up an umbrella and two of our own chairs along the shoreline, where the rock-hard portion of sand meets the soft sand part of the beach, and in front of the large hotel. (21) Sure enough, hotel security approached us and told us to move. (22) The thought of not being able to dig my toes into the soft white sand of the beach, while I read my book and enjoy the ocean view, upset me, so I start to wonder: can this hotel really own the beach and also exclude the public from enjoying it? (23)

This question is not as easily answered as I had imagined because to my surprise, ownership, boundary lines, and the use of the beach are still widely debated. (24) In Florida, the area of wet sand below the mean high water line belongs to the public. (25) This area of the beach has been held by the state in trust for the people since Florida became a state in 1845. (26) In practice, the public trust doctrine usually permits the public to walk across the sandy part of the beach to get to the water, but once at the shoreline they have nowhere to go, but in the water. (27) However, the purpose of the public trust doctrine is not only to protect the public right to access the beach, but also the public right to use and enjoy the beach. (28) Yet, in order for the public to fully enjoy and use the beach, they must necessarily use the dry sand, as the dry sand portion of the beach is intimately linked to recreation and other ordinary beach activities. (29) Thus, use of the dry sand upward of the mean high water line, presents a complicated situation for communities, such as Siesta Key in Sarasota County, Florida, where more and more private property owners are seeking to exclude the public from the dry sand portion of the beach. (30)

Under the public trust doctrine, as it was first intended, use and enjoyment of the beach essentially required some use of the dry sandy portion of the beach, area that lies above the mean high water mark. (31) The state's public trust doctrine, which was established to protect the interests of its trustees (i.e. the public), does not adequately protect the interests of its trustees because it fails to adequately preserve the public's pre-existing right to a reasonable area of dry sand beach above the high tide line. (32) Instead, when beachgoers in Florida attempt to assert their right to the dry sand area of a beach, they are either faced with "No Trespassing" signs, or are, like my husband and I, forced to leave by private landowners, the police, or private security guards. (33) Although the current public trust doctrine in Florida may succeed in establishing the public's right to access the beach--usually seen through an easement over private property to reach the water--in practice it does not sufficiently protect this right where the public does not have use and enjoyment of the dry sand portion of the beach. (34)

Part I.A of this comment discusses the history and evolution of the public trust doctrine, which dates back to Roman and Old English common law. (35) It asserts the public has a pre-existing right to the dry sand portion of the beach, a right that has been wrongfully limited in Florida by its current public trust doctrine. (36) Part I.C examines the uniqueness of beach property, and explains how the traditional notions of private property cannot succeed in overcoming the public's pre-existing right to the beach. (37) The fact remains that over time the public right to use and enjoy the beach in Florida has been dwindling away, almost to extinction, as it is increasingly limited by development and privatization of Florida beaches. (38) Finally, Part II argues that Florida should follow New Jersey's lead and resolve this problem by amending its current legislation to include a reasonable area of dry sand area above the high water mark for the use and enjoyment of the public. (39)

1. THE PUBLIC TRUST DOCTRINE

   1. HISTORY OF THE PUBLIC TRUST DOCTRINE

      American law, including the public trust doctrine, finds its roots in both English and Roman common law. (40) The Roman Emperor Justinian first recognized the idea of a public trust in the seaside when he included the provision, "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," in his realm's written law. (41) Thus, the public trust doctrine, at its very core, finds its origins in natural law. (42) Further, in England, because the King--who held legal title to the sea and shore--exercised ownership over all sovereign land, a quarrel between the King and the people over land was usually settled in favor of the King. (43) Nevertheless, even the King's ownership over such property, including the shore, was subject to certain "regresses and egresses" of the people, whose rights had been "variously modified, promoted, or restrained by the common law, and by numerous acts of parliament...." (44) There is no doubt that use of the shore, historically, has been a common right of the public; (45) the King may have had technical ownership over the sandy shore, but the people retained use of that shore. (46) English common law then formed the foundation of our legal system when it was used to govern the first Colonies of America. (47) Today, under American law, title to land from the federal government runs only up to the high water mark, with land waterward held by the states in trust for the people. (48) However, what is missing from the modern public trust doctrine is the preservation the public's natural right to use the nation's dry sandy seashore. (49)

      After the United States gained Florida from Spain in 1821, and upon its acceptance into the Union in 1845, Florida became subject to the same rights and responsibilities regarding navigable waters and submerged lands as the original thirteen states. (50) Included with its governance of public trust lands, was the duty of the State of Florida to ensure the beach and its shore continued to be free for public use. (51) Although the public trust doctrine began at English common law, (52) it was eventually integrated into the Florida Constitution and further codified by Florida Statute. (53) The pertinent portion of the Florida Constitution explains, "[t]he title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people." (54) Thus, the purpose of the land held in trust by the State of Florida is to protect and further the public's interest in a unique natural resource. (55)

      In Florida, the boundary line between privately owned beach and state owned land is the mean high water line, which is determined by the average range of high tide over the previous nineteen years as referenced in the Florida Constitution as the...