Who Owns the Beach?

Abstract

Many Americans believe that beaches are “owned” by the public from the vegetation line/dunes to the ocean. However, this is not true on the 70% of land abutting the shoreline that is privately owned. This private land extends down to mean high or low water lines. In contrast to relatively uniform ownership boundaries, beach access varies greatly among states and is based on the Public Trust Doctrine (PTD), that in turn is based on English common law. Under English common law shorelines have two titles. One is the public’s right of use, and the other is private rights of possession and exclusive use. States can convey rights of possession, but they cannot convey the public’s trust rights and are obliged to govern, manage, and protect the public’s trust rights. Therefore, even though a property owner may “own” the beach, that ownership is still subject to paramount rights of the public to use trust lands for public purposes. Some states such as Texas, Oregon, Hawaii, North Carolina, and New Jersey have opened up their beaches by giving the public lateral access from the vegetation line down to the ocean despite part of this land being privately owned. Their actions have been backed by state courts that cite the PTD. It is within the power of all states to do the same. The Corps of Engineers has opened up public access on the 350 miles of shoreline where it has placed beach nourishment, because for a project to be funded the Corps requires a perpetual easement for public use, usually from the vegetation line to the ocean. The Corps also requires states or local governments to provide perpendicular access to beaches by providing parking and other amenities. Conflicts between beach owners and the public have increased with private-beach signs and even fences springing up. Sea level rise will intensify these conflicts. If property owners resort to building structures such as seawalls and revetments, publicly accessible beach widths will decrease. If governments buy coastal properties through managed retreat or if owners support beach nourishment, public access will increase. There also will be increasing pressures for states to follow the lead of those that used the PTD to open up lateral access to beaches.