chevron-down Created with Sketch Beta.

ARTICLE

Beach Access for All: Increasing Equitable Beach Access Using the Public Trust Doctrine and EJ Policy

Sophie Coassin

Summary

  • The article begins with the history of exclusion of BIPOC people from beaches for context.
  • The background and history of the public trust doctrine is discussed.
  • Next, examples of states unique utilization of the public trust doctrine to further beach access are explored.
  • Lastly, policy recommendations are presented.
Beach Access for All: Increasing Equitable Beach Access Using the Public Trust Doctrine and EJ Policy
Jennifer MacNeill via Getty Images

History of Exclusion

Historically, beaches were sites of segregation, and sites of white terrorism when this segregation was challenged. In the nineteenth and early twentieth century, Jim Crow laws in the South and exclusionary laws in the North fueled the segregation of beaches. The effects of these racial policies still linger with Black, Indigenous, and People of Color (BIPOC) people often living farther away from non-polluted beaches and facing additional barriers such as exorbitant parking fees. When Black people successfully challenged discriminatory beach access practices, oftentimes municipalities responded by privatizing land. In the 1930s, the National Association for the Advancement of Colored People  won a suit against Westchester County, New York, for exclusive practices, and in response, the county began selling its public recreation land to private developers. Thirty years later, six beaches that were previously public lands became private beach clubs. Around the same time, many municipalities expanded their exclusionary zoning policies, which resulted in the exclusion of BIPOC and low-income people. In most cases, based on the timing of exclusionary proposals and the underlying violent response to challenges to segregation, the exclusion of BIPOC people was intentional. 

Public Trust Doctrine

A recent study by the Center for American Progress and Hispanic Access Foundation found that only ten percent of the U.S. coast (including shoreline along the Great Lakes) has strong legal protections to ensure equitable access to the public. The public trust doctrine is an essential tool to ensure equitable beach access. The varying levels of legal protections for beach access depend on the state’s interpretation of the public trust doctrine. The public trust doctrine is the principle that certain natural resources belong to the public. The most common state interpretation of the public trust doctrine, as applicable to beach access, is that the public has access up to the high tide line. Originally, the doctrine only protected the public’s rights to fish and navigate, but as times are changing some states’ interpretations of the public trust doctrine are expanding to include recreational uses. In 1892, the Supreme Court established that the government is the trustee of the public lands, and the public is the beneficiary. The Court held that:

[t]he State holds the title to the lands under the navigable waters . . . in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, freed from the obstruction or interference of private parties.

States and their courts have independently furthered the development of the public trust doctrine through common law, state regulations, their respective state constitutions, or some combination of the three. Below are examples of States with some of the strongest legal protections for beach access.

New Jersey

Through common law, New Jersey courts have developed one of the broadest interpretations of the public trust doctrine. As a result, New Jersey has some of the strongest beach access legal protections. In Borough of Neptune City v. Borough of Avon-by-the-Sea, the court found:

 [i]n this latter half of the twentieth century, the public rights in tidal lands are not limited to the ancient prerogatives of navigation and fishing, but extend as well to recreational uses, including bathing, swimming and other shore activities. The public trust doctrine, like all common law principles, should not be considered fixed or static, but should be molded and extended to meet changing conditions and needs of the public it was created to benefit.

This reasoning led the court to conclude that while municipalities can charge reasonable fees for upkeep, they may not discriminate between residents and non-residents. In Matthews v. Bay Head Improvement Association, New Jersey once again broadened the scope of the public trust doctrine to include access to privately owned “quasi-public” beaches, including the dry-sand area, if certain factors were present.

California

In 1976, California amended the state constitution to include public trust doctrine principles. Specifically, the California Constitution states that no one who possesses navigable water has the right to exclude, obstruct, or destroy the right of way or free navigation of such water. It then declares the legislature “shall enact such laws as will give the most liberal consideration to this provision so that access to the navigable waters of the state shall be always attainable to the people thereof.” This constitutional amendment clearly shows the state’s public policy goal of maintaining a broad interpretation of public trust principles to ensure access to navigable water for all people of the state. In response, the legislature passed the California Coastal Act of 1976 (the Act). The Act is a guide to coastal development and established an agency, the California Coastal Commission, to regulate such development. Other states like Hawaii, Illinois, and Florida have also included the public trust doctrine in their states’ constitutions.

Texas

In 1959, Texas passed the Texas Open Beaches Act (TOBA), which codified the public’s unrestricted right to access public beaches. TOBA defines a public beach as the area between vegetation and the mean low-tide line, including sandy beach. Most notably, under TOBA, a rolling easement concept applies, meaning that as the coastline changes, the public easement to access changes with it. In 2009, Texas voters approved a constitutional amendment (section 33) that further solidified public beach access for the public. It granted the right to ingress and egress to public beaches as a permanent easement. Additionally, the amendment declares that the legislature may pass legislation to protect public beach access. Similar to California, the strategy is to make beach access a public policy goal, backed by state constitutional provisions that invite the legislature to add further protections.

Policy Recommendations

All levels of government can coordinate to create policies that affirm a right to beach access and/or prevent restrictive measures to strengthen these public trust doctrine protections. Coastal resilience projects and funding present an opportunity for this type of legislation. Recently, the Infrastructure Investment and Jobs Act and the Inflation Reduction Act together allocated over $5 billion dollars for coastal resilience. The National Oceanic and Atmospheric Administration (NOAA) is the recipient in charge of these allocations and should condition funding for coastal community resilience projects on equitable access.

Similarly, states should require municipalities to meet certain standards for specific state funding programs and/or create incentive-based programs. States should pass specific legislation to ensure coastal access, like TOBA. They should also include an administrative structure in the legislation to monitor and enforce beach access. Another great tool states can offer is comprehensive mapping that shows public beach access points. In some states, it may also be necessary to pass legislation that prohibits municipalities from enforcing restrictive policies—such as capping parking fees.

Additionally, local governments have a lot of discretion over zoning and land uses. As a result, they can play a large role in increasing (or preventing) public beach access. A simple yet important role of local government is to address physical barriers and false signage that private owners use to deter others from using the beach. For example, in Quintana, Texas, the local legislature passed an ordinance that prohibits physical barriers and false signage that prevent people from entering, enjoying, or exiting a public beach. Violators of this ordinance face fines up to $500, and each day constitutes a new violation. Additionally, continuous violations are a public nuisance. This creates a strong disincentive for private property owners to try and restrict public beach access.

Ensuring equitable public beach access is long overdue. It is essential to ensure that the coastline is accessible to everyone. Therefore, the courts and federal and state governments, must interpret the public trust doctrine broadly to include beach access through common law, state constitutions, or statutes. Each level of government must create and enforce policies that expand beach access and remove barriers. Expanding legal protections for beach access across the country will make beaches more accessible to everyone and help close the nature gap and further environmental justice. 

    Author