It would be hard to overstate the value of Florida’s iconic sandy beaches. Not only are Florida’s beaches valued by its residents for recreation and access to the oceans, they are a key economic asset that helps to drive a substantial portion of Florida’s tourist economy. Beaches also provide habitat for various endangered and threatened species including resident and migratory shorebirds, several species of nesting sea turtles, and island-specific beach mice. Often valued by the square foot, the beachfront is the most highly valued property in many areas of the state. Given these facts, coupled with our robust property law regime designed to ensure clarity and security of title, you might assume that Florida law would provide clarity on ownership of and rights to use the beach. You would be very wrong.
If you are attuned to the issues surrounding public and private rights to the beach, you realize that when you are at the beach, you are on the equivalent of a battleground – an increasingly contested space bounded on one side by state sovereign submerged lands held in trust for all Floridians and on the other, often, by private property. The dry sand beach itself is very possibly privately owned. Yet as a member of the public, you may have a legal right to use that private beach based on longstanding use, under the common law doctrines of custom and prescription.
The strange reality is that the average beachgoer does not know exactly where the boundary lies between the public submerged lands and the private land, nor whether the public has rights over some of the beach that is in private hands. Although this can be known, it requires complex legal and technical information and analysis. Even if one can map the lot lines on local tax maps onto the relatively featureless and dynamic landscape of the beach, that alone does not provide the answers. To determine who owns the dry sandy beach may require application of 19 years’ worth of data on high tides (from which you would determine the mean elevation of the high tide) to data from the relevant time period on the contours and elevation of the coastline at this particular location (to determine where on the ground the mean high tide would actually reach) – not information that every beachgoer brings along for a day of fun in the sun. You would also need to know the pace at which the beach at this location has eroded or gained ground, and whether these changes have occurred as a result of sudden flux during a storm or slow change over a period of time or both. And to determine whether public use rights exist, you may need historical data on the type, frequency and duration of public use of the beach over a much longer period than 18 years, maybe since “time immemorial.” You would also need to know whether the sand has been artificially replenished and, if so, whether the beach has eroded past the mean high tide line that existed when it was replenished.
So in the best of times, determining rights to Florida’s sandy beaches has presented a thorny set of issues. But for many years, the public and private interests have co-existed, with occasional conflict but primarily tacit accommodation. Now, along with population growth, sea level rise and relentless erosion have become an uncomfortable reality to which coastal communities and landowners must adapt; accommodation is increasingly giving way to conflict over a shrinking sliver of sand. As sea level rises, beaches are threatened with submersion and erosion. In many locations, development, including hardened shorelines, or the topology and ecology of adjacent uplands mean that no new natural beach will be or can be created landward as the sea moves landward. The net result is shrinking beaches and an increasing reliance on offshore dredging and inland sand mining to replenish beaches.
The infinite variety of scenarios that sea level rise is presenting and will present along the coast will challenge our legal system in many ways. Although decisions by the Florida Supreme Court and the U.S. Supreme Court in the case of Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, 560 U.S. 702 (2010) confirmed that neither the provisions of the state’s Beach and Shore Preservation Act governing beach renourishment nor the Florida Supreme Court’s interpretation of those provisions on their face take property from beachfront owners in violation of the Florida Constitution or the Vth Amendment to the U.S. Constitution, this does not resolve all questions, even in the areas currently committed to beach renourishment. It is unclear how long beach renourishment will remain a cost-effective or feasible solution. Parts of South Florida have already run out of readily accessible offshore sources from which to dredge sand and sand is being trucked from other areas of the state. Coastal managers now have their eyes on neighboring island states. Sand wars among local governments over offshore deposits may soon open the battlefield’s second front.
As a professor with an interest in natural resources and environmental law who teaches Property and a Legal Skills Professor with a strong background and experience working on coastal issues through the College’s Conservation Clinic and Florida Sea Grant, we have recently joined forces to study these issues in greater depth. We’re embarking on a collaborative scholarly project intended to shed light on the uncertainties that the law creates for property owners and the public alike and to highlight the policy implications of the resolution of unsettled issues in this area. We are studying cases now in the lower courts and disputes bubbling to the surface in this area, while anticipating other challenges that are likely to arise. Stay tuned for updates on this work.