Friday, July 20, 2012

Pagano on Beach Access

PaganoCeleste Pagano (Oklahoma City) has posted Where’s the Beach? Coastal Access in the Age of Rising Tides (Southwestern U. Law Review) on SSRN.  Here's the abstract:

As the dynamic and shifting strips of real estate we call beaches have for centuries raised tensions between public and private ownership and use, a variety of common law doctrines have evolved to manage those tensions. Legal scholars have championed one less-developed doctrine, rolling easements, as the solution to preserving beach access in the face of accelerating shoreline movements expected due to climate change. Stated simply, rolling easements allow for the public’s right to access a beach, once established under any of a variety of common law means, to migrate or “roll” with the movement of the beach itself.

Until recently, rolling easements were presumed by many to be the law of the State of Texas. Recently, the Texas Supreme Court decided this was not the case. After a five-year legal battle, the Court held in Severance v. Patterson that beach access easements do not “roll” when there are sudden shifts in the shape of a shoreline. In doing so, the Court upended decades of Texas precedent and signaled the beginning of the end of public access to many previously free and open beaches. The Court’s reasoning rested largely on the application of the doctrine of avulsion, a centuries-old rule that is often recited but, in reality, so seldom applied to take away coastal access rights from the public that it is does not accurately reflect any “rule” at work in most of our coastal states. Instead, most of the very few American courts addressing sudden losses of land along coastlines have found ways to preserve public beach access once it exists. This accords with the multivalent values inherent in beachfront land, and with the particular weakness of the expectation interest in physically-shifting real estate. It is therefore my contention that the Court in Severance incorrectly applied a doctrine that has always had an uneasy place in property law and ill serves the contemporary reality of beaches that are retreating due to sea level rise.

Steve Clowney

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