A Line in the Sand

By Heather Boerner

It was fall 1998, and Ellis Pickett stood on Surfside Beach on the Texas Gulf Coast with his longboard and a premonition. He saw a dozen or so houses on stilts, their windows blown out and their foundations damaged by a recent hurricane. Forget beachfront property. These houses were now sitting in the Gulf of Mexico.

"I was standing among the septic tanks and busted-up houses, looking at the waves," he says, "and I thought, 'The property owners and developers are going to do something to fix this erosion problem — and they're not surfers.' They will want to build breakwaters to block the waves that surfers and others enjoy."

Pickett, who still regularly drives more than 100 miles from his home in East Texas to the state's best beaches, thought he might have to find a new place to surf. Although beach access is written into the Texas constitution, free access to this public space is in jeopardy after a series of state supreme court rulings supported the claims of property owners, even when storms have washed away the beach.

Texas is far from alone. Over the past few decades, battles between beachgoers and home owners have migrated to the courts — and in so doing removed them from localities' oversight and autonomy. And more and more, the suits are drawing lines in the sand between neighbors and communities. Sea-level rise and climate change could intensify this conflict.

"These suits rip communities apart," says Adam Steinman, an attorney who has argued beach access cases at Maine's top court. "People who've known each other for 40 years are no longer talking. ... It's painful and expensive, and it doesn't always resolve the issue. You have to fight beach by beach and use by use. It's an inefficient use of judicial, municipal, and taxpayer resources."

Marking fictional lines

In the U.S., beach access isn't governed by a single legal principle but by a variety of state and local laws and the common-law principle of the public trust doctrine, says Angela Howe, legal director for Surfrider Foundation, which is conducting 12 active beach access campaigns around the country. The public trust doctrine goes like this: Access to the shore and tidal areas of this country is so important to a community that the government is required to hold access in trust for the public good. Generally speaking, the beach is one such area.

But the states apply that principle in different ways. Some states have written beach access into their constitutions. Others require evidence of years of use by the public — a so-called prescriptive easement. Others hold that the beach is essentially private, except for commercial activities, like fishing or hunting. Some states allow people to walk across private land; others carve out what's public and what's private. Some require a state agency to sign off on any limits to public access to the beach. And that's to say nothing of local rules and planning policies.

Public space changes with the tide — literally. The mean high and low tides — a determination made by the National Oceanic and Atmospheric Administration — are the invisible barriers that separate public from private property along the coastline in most states. In California, Alaska, Alabama, Mississippi, Florida, and New York, and elsewhere, public land is defined by the mean high-tide mark — that is, wet sand is fair game. Only a few states — Maine, Massachusetts, New Hampshire, Virginia, and Delaware — define public space at the mean low-tide mark, essentially classifying the beach as private.

Oregon allows public use on the wet sand, but allows visitors access to land up to the vegetation line. Texas says public beaches start at the mean high-tide mark, but it allows people to drive or walk on dry sand. And Louisiana, Washington, and Hawaii mark any sand as public domain.

But the mean high- and low-tide lines aren't always clear, wrote law student Jennifer Sullivan in her 2003 dissertation at Florida State University College of Law. "This fictional line has only created trouble," she wrote, "between private land owners and the public."

See you in court

That trouble has landed public agencies and private home owners in court. The U.S. Supreme Court has heard several beach access cases, including 1987's Nollan v. California Coastal Commission and 2009's Stop the Beach Renourishment v. Florida Dept. of Environmental Protection.

Each case involves different legal questions. But commonly the principles come down to the right of the public to use open space and the right of home owners to their property.

Often the sticking point is not the beach itself but the pathway to it. To make public beaches public, says Howe, you can't just declare the land directly in front of the surf — so-called horizontal access — public. You also have to provide a means to get to the beach — perpendicular access. This is where home owners and public agencies argue about whether the access way is part of the public trust, or if it constitutes a taking of public property under the Fourth and Fifth amendments to the U.S. Constitution.

Two Californias

Although the California constitution guarantees the right to public beaches, the reality is murkier. Here, we consider two cases — where a previously open beach becomes closed and where de facto private beaches are opened to the public again.

When Rob Caughlan met Vinod Khosla in 2007 for a Vanity Fair photo shoot of America's most powerful eco-warriors, Caughlan found Khosla, a billionaire venture capitalist with an eye for clean-energy startups, to be affable. So when he learned that Khosla was the mystery owner of the old Deeney property on the beach north of California's Half Moon Bay, Caughlan was relieved. "Oh good," he remembers thinking, "someone with an environmental consciousness."

Now, after Khosla painted over the signs to Martin's Beach, installed a new gate, hired a security guard, and had a few surfers arrested for jumping the fence to catch a few waves, Caughlan has a new name for him. "He's a bad neighbor," says Caughlan. "We love the beach here, and you can't just come in and push everyone around and think you can avoid the law."

This is the story as you will hear it from devotees of Martin's Beach. (Khosla's attorneys did not return emails seeking comment.) In 2008, Khosla bought the 89-acre property, and the access way that connects the public to the sliver of beach, for $32.5 million. Nothing changed at first. Then Khosla closed the gate.

For years, the Deeney family had a gate on the path, too. But they let people in for $2 and sold concessions on the beach. There were bathrooms, too. Fishermen would bring their families to play in the sand while they waded into the coast's frigid water to catch smelt. It was a community space and a meeting spot, and, for Caughlan, it's been a favorite surf spot since the Eisenhower administration.

Everything changed in 2010, when the gate to the access way was locked. The sign marking Martin's Beach was painted over. And there were arrests. Caughlan, a cofounder of the Surfrider Foundation, says Khosla has refused to seek a permit for his signs and gate.

Khosla's attorneys have been quoted in the press saying that the demands of San Mateo County officials — to keep the road open year-round and to charge just $2 for parking (no increase for inflation) — are unreasonable. They also claim that the beach itself is private property as part of the original land grant from Mexico in the 1800s, and that public access was provided at the discretion of the previous owners — permission that Khosla is now rescinding.

Last fall, a San Mateo County judge ruled that Khosla should open the road to the beach immediately and apply for permits from the Coastal Commission for any further closures. The San Mateo County sheriff says he won't arrest anyone found on the path, and Gov. Jerry Brown has said he might use eminent domain to make the pathway public land.

At press time, Khosla had not applied for the permit and attorney Mark Massara, who helped pull together the legal team fighting Khosla's beach closing on behalf of the Surfrider Foundation, says he expects the case to end up in the U.S. Supreme Court.

Although public access has been affirmed in court so far, Massara, a surfer, says the case is "years and years and years away" from being resolved. Fighting these access battles against billionaires is not for the faint of heart.

"[Khosla's attorneys] are likely going to keep fighting as long as he's willing to keep paying their bills," says Massara. "It took a hell of an effort for us to be able to obtain the support of lawyers willing to take on this case. The public is just very fortunate in this case that famous lawyers like Joe Cotchett and Pete McCloskey decided this was important enough that they wanted to do the case regardless of the financial inequities."

San Mateo County Superior Court Judge Barbara Mallach declined to charge Khosla up to $20 million in penalties for failing to apply for the permit — and that's what worries Caughlan. The California Coastal Commission could fine Khosla $11,000 for every day he keeps the gate locked and keeps people off Martin's Beach. According to Forbes, Khosla could afford to pay the penalty for 406 years.

Washed away

Once upon a time, Broad Beach matched its name. The swath of sandy beach in Malibu, California, has been called "one of the widest expanses of open beach in the region" by the Los Angeles Times. But no more. Home owners, who have included Steven Spielberg, Dustin Hoffman, and Danny DeVito, have agreed to tax themselves upward of $20 million to import sand to keep storms, sea-level rise, and stormwater runoff from robbing the neighborhood of infrastructure or houses.

Just up the coast from Broad Beach, the residents of Lechuza Beach have seen a railroad line and parcels of land meant for development all disappear into the surf.

"The middle of the street washed away," says Shari Sant Plummer, who lives in the last house before Lechuza Beach on the aptly named Sea Level Drive.

When the property disappeared into the surf, so did the de facto private nature of Lechuza Beach: The Mountains Recreation and Conservation Authority (MRCA), a public partnership, bought the land, and the path past Sant Plummer's house in the early 2000s, and declared public access.

Predictably, as the distance between the high-tide level and homes narrows — and as residents of Sea Level Drive adjust to the newly public nature of their beach — the fights between residents and visitors have intensified. They aren't confrontational on quiet little Lechuza Beach, a narrow inlet populated by cypress trees and kelp patties, and the dolphins, whales, and sea lions they attract, as they are just south on Broad Beach. There, news reports describe security guards shooing visitors from sand above the median high-tide line, and tell of locked gates and no-trespassing signs on public easements. The Coastal Commission has sued Broad Beach home owners more than once. At Lechuza Beach, Sant Plummer and her husband, Dan Plummer, have reported that the worst of the confrontations have been to ask late-night partiers to quiet down and, on occasion, people invading their patio.

And while the sudden public nature of Lechuza Beach may seem unusual, it's not, really. That's because when home owners want to renovate their homes, the CCC often extracts public easements, making the sand a patchwork of public and private land that's difficult for anyone to navigate.

Most famously, DreamWorks cofounder David Geffen promised to open the gate to his Carbon Beach home to allow a public easement in exchange for the commission's permission to build a swimming pool. The gate stayed locked for nearly 20 years. In 2002, Geffen filed a lawsuit to prohibit the public from walking past his house to the beach beyond. After three years, he relented. The gate is meant to be unlocked every day now.

Dan Plummer, a retired builder, says the fundamental issue isn't about keeping the public out. It's about thoughtful management of the beach and the infrastructure that goes with it. "The vision of the MRCA is to pave paradise and put up a parking lot," says Plummer.

MRCA is the Mountains Recreation and Conservation Authority, a local public partnership that bought a chunk of unbuilt beachfront home parcels that are now part of the sand. That purchase, in the early 2000s, turned the private land public, and has stoked fights with home owners like the Plummers. MRCA has proposed ramps to the sand, bathrooms, and septic systems on the eroding shore, and a viewing platform for visitors that would block the Plummers' ocean view.

"I've tried to work with them; I was involved for six years," says Sant Plummer, who now works full-time for the couple's environmental organization, Code Blue. "I couldn't deal with it. ... The more we tried to tone it down, the worse it got."

If they stop fighting, the Plummers fear that their little beach, with its cypress trees and kelp patties, and the dolphins, whales, and sea lions they attract, will be turned into a Zuma Beach, a large public beach a few miles to the south, where visitors can "practically drive onto the beach," says Dan Plummer. That's where there are public bathrooms and concession stands and plenty of easy access.

Instead, their vision includes gates that automatically lock at night, to keep people from sleeping on the beach or having loud, late-night parties. They imagine decomposed granite pathways lined with indigenous plants instead of concrete, and bathrooms made of recycled and reclaimed materials. Maybe a docent could teach visitors about the unique ecosystem of the beach and prevent beachgoers from crowding the sea lions.

"You can't control the mood or attitude of the people who come to the beach," says Dan Plummer. "What Shari and I are concerned about is that we should have some level of cooperation managing the beach."

But with or without the home owners' consent, more and more visitors are arriving — and not because of a court ruling. The smartphone app Our Malibu Beaches has put Broad Beach on the map, literally. Using GPS and CCC maps, the app helps visitors navigate past erroneous no-trespassing signs and invisible lines between public and private so they can reach the beach.

Already, the Plummers say that there have been more car accidents on Pacific Coast Highway, the freeway along the beach, because of increased beach traffic. The beach is crowded all the time. And the beach's increasingly public nature is taking its toll.

Dan Plummer still can't seem to believe his good fortune at getting to live at the ocean's edge. Shari Sant Plummer is now a little less enamored. "We're pro public access; we're just fighting the management of the access," she adds. "It's something that actually unites all of Malibu."

All eyes on Texas

Many legal scholars are watching Texas. In 2010, the state supreme court heard Severance v. Patterson, in which home owner Carol Severance sued Jerry Patterson, commissioner of the Texas General Land Office, for the cash value of her Galveston property, which ended up in wet sand in 2005 after Hurricane Rita. She argued that the state's tough open beaches law says nothing about not reimbursing home owners for houses that end up below the mean high-tide line.

The state's high court ruled with Severance in 2010, saying the state-prescribed public easement doesn't "roll" when nature rearranges the shoreline. But that ruling means that the dry sand — what a visitor would recognize as the beach, and what the Texas Open Beaches Act has declared a public access way — may no longer be open to the public. The case is currently moving through the federal court system.

It is already having repercussions. In 2013, the state supreme court overturned a lower court ruling in Brannan v. State of Texas by siding with property owners again. The high court said that the Open Beaches Act resulted in a taking and that the lower court should revisit its decision in light of Severance.

The 2013 decision is what worries Texas surfer Ellis Pickett today. The case is based in Surfside Beach, Pickett's favorite surf spot.

In the past, the Texas Open Beaches Act ruled that, if the shoreline eroded enough to put a house below the median high-tide mark, the property owner had to remove it. Severance allowed home owners to get some money for those submerged houses. Brannan posits that the original 1945 land grant for the west end of Galveston, where Surfside is located, didn't reserve the beach for public use, so the open beaches law doesn't apply.

For Pickett, the bigger problem is the ongoing erosion, which brings home owners in constant conflict with public agencies. Pickett says he's watched Surfside Beach erode from 100 yards of sand to the point where no beach remains and many of the houses are in the water. That could mean the end of public beaches and the end of Pickett's surfing career.

Pickett got involved in the politics of beach access in 1999 as the founding member of Texas's Surfrider chapter because of erosion, not access. But now, he says, the two are coming together. "Beach nourishment" — trucking in sand to replace lost sand and land, or the careful preservation of vegetation — to stave off erosion, he says, "is the only thing we can do."

Heather Boerner is a journalist and author based in San Francisco.

Note: This story has been edited to correct the beach on which Shari Sant Plummer and Dan Plummer live. They live on Lechuza Beach, not Broad Beach.

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Resources

Images: Top — Thanks to erosion, Broad Beach in Malibu no longer lives up to its name. But it does have broad appeal, particularly lately, since a new app helps visitors find beach access points. Courtesy Our Malibu Beaches. Middle — Many of the Surfside Beach houses in these photos are gone — some moved by their owners, others destroyed by storms. One of the homes still standing is literally in the water. Ellis Pickett and fellow environmentalist Jeff Hooton (pointing at a destroyed 10-foot, steel-reinforced concrete bulkhead) talk about the erosion problems at the beach, where even streets have been lost to the waves, in a 2006 documentary, Beach Drive: Public Rights and Private Property. More recently, the beach was the focus of the 2013 decision in Brannan v. State of Texas, which ruled that Texas's Open Beaches Act resulted in a taking. That decision worries Pickett: Could it be the end of the treasured Surfside Beach? Courtesy ©Ellis Pickett. Bottom — The removal of storm detritus — from window glass to bulkhead debris — from Surfside Beach is a constant and necessary activity to protect beachgoers from injury. Courtesy ©Ellis Pickett.

Texas after Severance v. Patterson: http://tinyurl.com/pcscfd5; http://tinyurl.com/l6wrphe

Erosion on two coasts: http://tinyurl.com/ma6569k

Broad Beach, Malibu: http://tinyurl.com/lev7d2m

Martin's Beach: http://tinyurl.com/p8fmfne

Jennifer Sullivan's thesis on beach access: http://tinyurl.com/ok4ra8h

Beach Drive: Public Rights and Private Property: A Documentary Film. Producer Jessica Schoenbaechler explores the causes and effects of extreme erosion at Surfside Beach (2006).

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