Shifting Sands: A Meta-Theory for Public Access and Private Property Along the Coast
Melissa K. Scanlan
Vermont Law School
June 13, 2013
Forthcoming in South Carolina Law Review, Vol. 65, 2013
Vermont Law School Research Paper No. 19-13
Over half the United States population currently lives near a coast. As shorelines are used by more people, developed by private owners, and altered by extreme weather, competition over access to water and beaches will intensify, as will the need for a clearer legal theory capable of accommodating competing private and public interests. One such public interest is to walk along the beach, which seems simple enough. However, beach walking often occurs on this ambulatory shoreline where public rights grounded in the public trust doctrine and private rights grounded in property ownership intersect. To varying degrees, each state has a public trust doctrine that defines public rights on beaches. The extent to which a court subscribes to a sovereignty theory influences the outcome for public rights. Under this theory, the public trust doctrine is an attribute of state sovereignty, and as such, the state lacks the power to eliminate it. Applying a sovereignty theory leads courts to conceptualize public trust rights as an inalienable easement that burdens coastal private property regardless of its omission in the recorded deed. Courts that interpret coastal property in this way allow for a coexistence of public and private rights that accommodates shared uses of the beach, consistent with centuries of English common law. In contrast, courts that theorize state power includes the power to transfer public trust property into private ownership free of public rights leads courts to view the public trust doctrine as an ownership doctrine and draw a distinct line in the sand dividing public from private fee simple estates. These courts tend to favor exclusive use of the beach by private landowners by asserting the dividing line for title purposes is also the boundary for all public rights. This Article examines divergent approaches to public access to beaches across the United States, demonstrates how legal theory influences substantive public and private rights, and discusses takings considerations on beaches. The Article suggests public and private interests are best served by a historically grounded sovereignty theory that recognizes a public trust easement always burdens coastal private titles coupled with a theory of evolving public rights. These background principles not only protect shared uses of the beach, but provide greater clarity around what constitutes a taking of coastal property.
Number of Pages in PDF File: 59
Keywords: Water, coastal property, public trust doctrine, takings, walking, beach, public rights, Great LakesAccepted Paper Series
Date posted: June 14, 2013 ; Last revised: June 17, 2013
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