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Coastal Rights: Private Ownership a Contravention of Public Trust Doctrine

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Adanna C. Kalejaye
August 28, 2023

71 percent of the earth’s surface is covered in water, making it a very important component of our ecosystem. The earth’s water bodies are vital to keeping its balance as it produces half of the oxygen needed by human beings and houses almost 94 percent of the wildlife on earth. However, with nearly 900 water bodies around the world flowing through states and over international borders, it is not always there for everyone when they need it or where they need it. “Water belongs to us all. Nature did not make the sun one person’s property, nor air, nor water, cool and clear.” This quote from Ovid’s metamorphoses outlines the general consciousness of ancient civilization. Contrasting this with the common law notion of coastline ownership as encapsulated in the ‘riparian law’, there seems some sorts of contradiction. The riparian right granted by this law gives a landowner whose land borders a river the right to use water from that river on his land to the reasonable exclusion of others.

It is a truism that the coastal zone which is rich in a variety of natural resources is vital in supporting America’s public lands, from providing opportunity to fish, travel, explore and take in the healing benefits of water to being a lifeline to communities engaged in various agricultural practices and providing significant quantity of clean renewable offshore and onshore energy. The Coastal Zone Management Act of 1972 declares it a national policy to preserve and protect, restore or enhance the nation’s resources in its coastal zones. It further declares in same Act S. 303(2)E that it is national policy to assist the states in their responsibility to manage their coastal zones, one of which is providing public access to the coast. This right of the public to use and access U.S. coasts and waterways as a public resource enshrined as the Public Trust doctrine notwithstanding, states have the discretion to implement, enforce, protect and in some instances expand or shrink this access. In essence, although natural water bodies fall under the realm of public resource, certain areas of water are privately owned.

Stricto sensu what constitutes public access to coastlines? Public access to coastal waters has been determined in two dimensions; the first is dependent on whether the water body is navigable or non-navigable and the second is based on the right to use the water. In general, though all persons have access to the navigable waters, its use is contingent on not interfering with private property ownership. Whilst the criteria for the navigability of water is established as one to which is deemed as a highway for commerce or a passageway, the right to use the water is shrouded in state induced interpretations. Varying state administrative approaches to coastline ownership has given rise to a myriad of contentious assertions to internal coastal access. Only 12 percent of beaches are open to the public in Massachusetts as property rights to most coastal lands were transferred from the state to private coastal landowners, diminishing the extent of the Public Trust Doctrine and essentially shifting the public’s access which began at the high-water mark to the low water mark.

Although, specific public rights to fishing, fowling and navigating on private lands were retained, it is subject to interpretation of the state. Following in this stead are other east coastal states like Delaware, Maine, Pennsylvania and Virginia who adopt similar position on private ownership to coastal lands as Massachusetts. As noted by John Duff, professor of environmental law and policy in the University of Massachusetts, Boston, the resultant effect of restricting public access to coastal waters is increasing conflict and heightened tension between private owners and the public, especially with publicly available coastal spaces shrinking from the impact of climate change.

Only 10 percent of the U.S. coasts and great lakes are covered by strong legal protection from public access, from which Oregon, Texas and Hawaii stand out, guaranteeing free, permanent and unrestricted public access to state’s coastlines. One way in which Oregon has maintained this right is by ensuring that public lands and the physical or visual access to coastlines are not sold except public access to it is retained. Apart from the obvious derogation of the public trust doctrine, a weightier consequence of restricted public access to coastline is environmental injustice.

Findings from a study carried out by Kim et al. (2019) to assess “the environmental justice of public beach access in Detroit Metropolitan Area using a multivariate regression analysis” showed “that five independent variables; educational attainment (proportion of population with a university degree or higher), population density, elderly population (proportion of population over age 64), median housing value and nonvehicle ownership were statistically significant at the 0.05 level”. These findings provide strong empirical evidence that socioeconomic status can influence regional disparities in access to public open spaces. Also, a 2022 report analysis by Center for American Progress (CAP), finds that 70 percent of low-income communities, (often racial minorities) across the United States live in areas delineated as nature deprived, as such restricted coastal access cannot be delinked from environmental injustice.

Author: Adanna Kalejaye is an internationally specialized lawyer in the fields of commercial law, environmental law, energy law and maritime law. She holds an LL.M (Master of Law) from Swansea University, Wales, UK. She is currently a doctoral student and research assistant in Public Policy at the John W. McCormack Graduate School of Policy and Global Studies, University of Massachusetts Boston. She teaches courses on sustainable development and zero wasteat the Osher Life-Long Learning Institute (OLLI) in UMass Boston. Her research interests are in environmental law and policies, climate change, sustainable development, renewable energy, waste management, policy building and analysis at both national and international level. She can be contacted at [email protected],

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