They’re not done fighting yet. Photo: Martin’s 5

The Inertia

What if someone told you that you couldn’t walk across the beach to go surfing? For the average watermen, something like this sounds like crazy talk. The ocean means so much to us and the beaches and public spaces adjacent to the water are our gateways to it. But the truth is this brand of crazy talk seems to be happening all over. At the town, city, and even the state level, there are an insufficient number of public beach access points – and the existing ones are being threatened every single day by various sources of external pressure. From regulated and restricted access hours, locked gates, development, and even economic barriers, the public’s ability to access the beaches and oceans are being severely limited.

Access to waterways and beaches should be a fundamental and universal right for all members of the public. All members of the public should be able to enjoy low-impact and responsible access to these areas. We love these places and they are being taken away even though the right of the public to access these places are guaranteed by public trust doctrine and customary use.

Organizations such as the Surfrider Foundation actively fight for beach and waterway access and have publically released policies to address many aspects of these issues. The battle over Martin’s Beach has been one of the most high profile instances of this recently, while Maine Beach Access Litigation, Texas Open Beaches, and Chicago Surf Access are all in the mix as well. Despite the notoriety of these campaigns, where surfers have literally been arrested for jumping in the water, there are thousands of other battles for ocean access occurring every day. The first step in combating this is knowing what’s up.

From a historical perspective of ocean law and policy, there have been two persistent doctrines encompassing how sovereign nations view the seas: the doctrines of Mare Liberum (the free sea) and Mare Clausum (the closed sea). While there has been some fluctuation in how nations have interpreted the governing principles of the world’s oceans, the commonly accepted principles have been based upon natural law (ie. a body of unchanging moral principles regarded as a basis for all human conduct) stemming from the concept of the free and open sea.

Public trust doctrine has emerged over time from ancient Roman law concepts around common property, where the air, rivers, sea, and the seashore were incapable of being held by private ownership and were dedicated for use by the public. These principles would become the commonly accepted natural laws which influence the doctrine of Mare Liberum and English common law where, pursuant to the public trust doctrine, the sovereign held the navigable waterways and submerged lands not in a proprietary capacity, but “as a trustee of a public trust for the benefit of the people for uses such as commerce, navigation, and fishing.”

Incorporated into US law, the Public Trust Doctrine acts as a statement in which the government retains the rights to certain lands and resources in trust for the public, acting in a sovereign capacity as a trustee for the beneficial use and enjoyment of the public. All states are the trustees of the publically held waterways (navigable waters) and tidal lands, within their boundaries and for the common use of these resources for the people (ie. the public right to use these waters, shorelands, and submerged lands). These rights, by the way, are inalienable in that all of the public’s interest (and activities) in them cannot be extinguished.

According to the United States Supreme Court, the public trust doctrine in each state is “a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them and have the liberty of fishing” that is free from obstruction and interference from private parties. In essence, this means that the public trust responsibilities of the state are such that there is a duty to protect these natural resources and their uses as they are part of the people’s common heritage of these tidal and submerged land areas which are held for common use. In addition to the Public Trust Doctrine, there are also public rights (depending on the state) for accessing beaches and waterways based on customary law, historical use, and legislative/authoritative actions.

Ultimately, the public (yes, that includes ratchet surfers too) has an inherent right to access beaches, shorelines, and waterways within the suggested qualifications listed below.
-Based on the principles of home rule, local authorities in each state maintain the authority to develop and maintain public access to and along the shorelines and waterways.
-Public access rights and opportunities should be retained where they exist and new access opportunities should be provided.
-Private developments should not be allowed to interfere with public access in any case and all water-related access for recreational uses should be protected.
-As per the Public Trust Doctrine, fair and equal access should be afforded to all public waterways and beaches. Obstacles, including development, fences, hired security officers, signage, blockades, etc., should be minimized and charged as an infringement upon public rights of way.
-Ecological restriction for certain uses should be enforced in public use areas to preserve sensitive ecological areas and ensure ecosystem health which further supports the areas used for recreation and commercial purposes.
-Any legislation should take into account customary uses, traditional and historical uses and practices.
-Access to the beach or waterway should carry tax, toll, or fee. Any fees related to access (such as metered parking) should be used for purposes that are related to the uses of the area and targeted towards improving the environmental, social, or public access conditions.

Now, have you been harassed while heading out on the water in a public space? My best advice is to keep your cool and to explain the situation to the harassing individual. Law enforcement professionals advise that you do not confront the individuals(s), suggesting that it is best to remove yourself from the situation and then contact the authorities. Make sure that you have a camera ready to document the confrontation, if there is one, as you have the right to take video and photos on public lands and waters. The video/photo material that you gather can be used as evidence, as any harassment on public lands and waters is a possible criminal offense depending on your location. Any interference, including the attempted confiscation of your camera is a serious offense, depending on your state. Be sure to file a criminal complaint with your regional conservation enforcement agency, as they are equipped best to handle and respond to these situations.

This article was inspired by a waterway access issue in Miami, Florida, where myself and Hunter O’Brien were confronted by a security officer in the employ of the City of Miami at the Miami Marine Stadium Marina. The Miami Marine Stadium is a publicly owned space and the surrounding waters are also used as a safe harbor for vessels. Upon removing a paddleboard from our car, we were confronted by a security officer who stated that paddleboarding was not allowed and that no boats could be launched from the area, even though this was a public space and there is a commercial kayak and paddleboard rental company operating at this location. During the encounter, and in the most aggressive manner possible, the security officer stated that he was employed by the City of Miami, that he “was the law,” and if we did go in the water he would call the police. All this in spite of being reminded this was a public area and that under public trust doctrine (including the fact that there is signage specifically allowing paddleboard) the activity of paddle boarding and launching from this location is legal based on non-disclosure, historical use, and public access rights. We kept our cool, calmly explained the law to the “official,” and then paddled away from the launch point with zero repercussions.

Author’s Note: Thanks to Scott Stripling for his review of this article and for his prior work on access issues.


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