Beach Access in America and Public Trust Doctrine

It can be hard to see at first why this is an important topic and why it’s deserving of attention even in non-coastal states. It’s a complex issue with a lot contention and tension. People with beach front property are constantly looking for loopholes to keep their beaches private — even in states where there cannot be private beaches. To understand this, an understanding of the Public Trust Doctrine is crucial as is how different states interpret this. The access to beaches is not limited to the coasts; it also applies to the states bordering the Great Lakes. My focus will be on coastal states both for the sake of simplicity (as much as it can be) and because I am more learned and confident in this area than lakes. If you live in or regularly visit on the Great Lakes, this will still give you some information, show you what to look for, and provide some relevant resources. Knowledge is important and we should know what we have a right to.

Disclaimer: I am not a lawyer and none of this is legal advice. All I am providing is information on policy, court cases, and some state and local laws. Always consult a lawyer if you have a legal issue. And always check your own state and municipal laws. If you reside in unincorporated land, I urge you to contact a local government for guidance on where to look up laws applicable to you. All that is discussed and referenced here can be found in the resources section at the bottom; also included are books, a documentary, and additional articles for context, history, and annoying/difficult to find details.

The public trust doctrine in America is rooted in Roman law where the public has a right to access public resources (natural and cultural) which are to be preserved for the public’s use. In modern times this is often applied to water, waterways, and bodies of water but is not limited to these resources. Public use includes drinking water and recreational activities along with “public commercial navigation and commercial fishing in navigable waters.” It also prevents private property to extend into the water (with an unclear caveat in Massachusetts law in regards to tidelands). In the context of beach access, the public trust doctrine ensures that we, the public, have access to the beach and the water. It is up to the states to uphold this and how.

With this said, state laws still vary and there have been court cases in regards to beach access. The variances lie primarily in how the public trust doctrine is interpreted and often ends in deciding where the literal lines are. For the majority of the states, the basic laws are that the high tide water line into the water is accessible to the public and there has to be public access points to the beach; you cannot cross private property to access the beach unless with permission. In short: you have access to wet beaches. Details vary according to the state and town. It also depends on what is maintaining a beach and if the funding comes from private sources, the town, state, or federally. It is rare that a beach has not had any federal funding since relief is often applied for after a natural disaster to clean up, restore, and repair. The states of Maryland, North Carolina, Texas, Hawaii, Washington, and Oregon have access to both wet and dry beaches. Where things get unusual are the eight states where public access is restricted to below the low tide water line. Of those eight, the five coastal states are Maine, Massachusetts, Delaware, Virginia, and Pennsylvania.

In the states where public access is below the low tide, property can extend to this line but not into the water. Massachusetts has some room for interpretation as how to this applies to tidelands. Access to this area is up to the state and town to determine. Most often, this is done by providing beaches open to the public as well as easements. Depending on where you are, you may access these areas if your starting point is from a public access point and you swim or use a boat; typically for an express purpose but local and state laws will vary. However, you may or may not need to keep both feet in the water at all times which is the case in Massachusetts due to not having a cut and dry law as to if tidelands are still part of the private property or not. This is allowable in Massachusetts due to the old Massachusetts Colonial Ordinances of 1641-1647.

It is worth noting that Cape Cod of Massachusetts had such an increasing issue with overdevelopment in the first half of the 20th century, the Cape Cod National Seashore was established in 1961 by President John F. Kennedy after a diligent and relentless rallying by and pressure from the year round residents of Cape Cod. The National Park Service worked with residents to either purchase their land to be a part of the national seashore or to strike up a deal allowing continued living on their parcel of land within the national seashore. There are town entrances to the beaches of CCNS alongside the national park entrances. This was a huge gain for conservation and preservation of natural resources. Allowed on the grounds, with restrictions and/or requiring permits: foraging, hunting, clamming, surf fishing. Wampanoag Nation is allowed full access to the park for traditional use. This is in stark contrast with the rest of Massachusetts laws and attitudes in regards to beach access.

It is a common issue in states such as Rhode Island and Connecticut for private clubs and private homeowners to put up “No Trespassing” signs right on the beach. While this is applicable to the beach from the the high tide line and up, this is not applicable to below the high tide line into the water. However, there is often harassment, intimidation, and calls to police when someone is on the wet beach and has not crossed private property to access it. The idea of exclusivity is often achieved through town own beaches making it difficult to enter the beach from land, either through lack of parking, cost of entrance, difficulty of obtaining a pass, etc. This is most glaring when looking at Greenwich, CT which has been brought to court in the past for only allowing access to the residents of Greenwich despite having taken federal funding after natural disasters; they had falsely claimed all funding had come from the town and the residents. It was left up to Greenwich of how to make the beach accessible which resulted in access still being restricted due to difficulties in obtaining a pass.

Texas, by contrast, has very few restrictions on beach access. This was achieved by the Texas Open Beaches Act of 1959, amended in 1991. It allows people to enjoy the beach from the mean low tide line and the vegetation line. The act states:

“[The public]…shall have the free and unrestricted ingress and egress to and from the state-owned beaches bordering on the seaward shore of the Gulf of Mexico, or is the public has acquired a right of use or easement to or over an area by prescription, dedication, or has retained a right by virtue of continuous right in the public, the public shall have the free and unrestricted right of ingress and egress to the larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico.”

The Severance v. Patterson 2012 supreme court ruling did uphold that in Texas even when a beach is diminished and vegetation line is effectively gone, dry sand is not public grounds and thus the public cannot cross someone’s property on the dry sand to access the beach. However,

“The court noted that a ‘person purchasing beachfront property along the Texas coast does so with the risk that her property may eventually, or suddenly, recede into the ocean.’ Id. At 718. If that happens gradually the property owner loses some or all of her property, and if a house gradually comes to be located on the wet sand area, the state can order its removal from public lands. The reserve is also true: gradual addition to the beach will add to the beachfront’s owner’s property. However, if that line changes suddenly…as it did in this case, then borders remain the same as before. Id. at 722-723.”

What this means is that any previous public easement is now gone and a new public easement will need to be put in place.

Due to the complications and minutiae of varying state laws, it is not possible to summarize general rules applicable to wet and dry beaches, beaches below the high tide line, beaches below the low tide line, and even access to tidelands. It’s crucial to research individual states so that you know your own rights, the property owner’s rights, and how to recognize injustice. Everything I already presented is not in full or in detail — a whole book could be written on coastal laws and beach access of the United States. I have not touched up on the economic, social, class, or racial issues which provide context and has influenced these laws and continues to do so. I also did not touch upon how the ongoing practice of allowing houses and buildings to be built so close to the beach contributes to erosion and the changing of lines, but can be read about here with links to further reading about beach erosion.

Thank you for taking an interest and reading. I hope this was helpful. A tip is not expected but is always appreciated and is just another way to show support. Reading is a great way to support someone’s work as is sharing.

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Resources

General

• Beach Access. https://beachapedia.org/Beach_Access. Beachapedia. Website. Accessed: 02/28/2023
• Creeping of the Cross Sea: thoughts on waves and erosion by Chaia Levi. https://vocal.media/earth/creeping-of-the-cross-sea. Vocal, 2022. Website. Accessed: 02/28/2023
• The Land Was Ours: How Black Beaches Became White Wealth in the Coastal South by Andrew W. Kahrl. https://uncpress.org/book/9781469628721/the-land-was-ours/.‎ Publisher: The University of North Carolina Press, 2016. Book.
• Public Trust Doctrine. https://www.law.cornell.edu/wex/public_trust_doctrine. Cornell Law School: Legal Information Institute. Website. Accessed: 02/28/2023
• The Public Trust Doctrine: Basics of the Public Trust Doctrine. https://nationalaglawcenter.org/the-public-domain-basics-of-the-public-trust-doctrine/. The National Agricultural Law Center. Accessed: 02/28/2023
• Surfrider Foundation. https://www.surfrider.org/initiatives/beach-access. Accessed: 02/28/2023

Connecticut

• Free the Beaches: The Story of Ned Coll and the Battle for America’s Most Exclusive Shoreline by Andrew W. Kahrl. https://yalebooks.yale.edu/book/9780300215144/free-the-beaches/. Publisher: Yale University Press, 2018. Book.
• Supreme Court Case on Access to a Greenwich Beach by Christopher Reinhart, Associate Attorney. https://www.cga.ct.gov/2001/rpt/2001-R-0631.htm. Connecticut General Assembly. Accessed: 02/28/2023
• Bill Would Prohibit Greenwich from Charging More to Non Residents for Beach Access. https://greenwichfreepress.com/news/government/bill-would-prohibit-greenwich-from-charging-more-to-non-residents-for-beach-access-153918/. Greenwich Free Press. Website. Accessed: 02/28/2023
• Park Passes [for Greenwich, CT]. https://www.greenwichct.gov/2037/Seasonal-Passes-Tickets. Greenwich Parks & Recreation. Accessed: 02/28/2023
• Coastal Access in Connecticut. https://portal.ct.gov/DEEP/Coastal-Resources/Coastal-Access. CT.gov. Accessed: 02/28/2023
• Bill Introduced to Ease Non-Resident Beach Access at CT Town Beaches. https://greenwichfreepress.com/news/government/another-year-another-bill-introduced-to-ease-non-resident-beach-access-at-ct-town-beaches-194861/. February 16, 2023. Website. Accessed: 02/28/2023
• Racism Kept Connecticut’s Beaches White Up Through the 1970s by Amy Crawford. https://www.smithsonianmag.com/history/connecticuts-beaches-were-largely-limits-african-americans-through-1970s-180969494/. Smithsonian Magazine, July 2, 2018. Website. Accessed: 02/28/2023

Massachusetts

• Built on Narrow Land: The End of Bauhaus Summers on Cape Cod, a film by Malachi Connolly . https://www.imdb.com/title/tt2730148/. Saltbox Films, 2013. Documentary.
• Cape Cod: An Environmental History of a Fragile Ecosystem by John T. Cumbler. https://www.umasspress.com/9781625341099/cape-cod/. University of Massachusetts Press, 2014.
• Cape Cod National Seashore. https://www.nps.gov/caco/index.htm. National Park Service. Accessed: 02/28/2023
• The Cape Cod National Seashore: The Beach That Saved The Cape by Ian Aldricht. https://newengland.com/yankee-magazine/travel/massachusetts/cape-cod-national-seashore-the-beach-that-saved-the-cape/. Yankee Magazine, May 13, 2015. Website. Accessed: 02/28/2023
• Massachusetts Colonial Ordinances of 1641-1647. https://www.mass.gov/doc/colonial-ordinances-of-1641-1647/download. Mass.gov. Accessed: 02/28/2023
• Public Rights Along the Shoreline [of Massachusetts]. https://www.mass.gov/service-details/public-rights-along-the-shoreline. Mass.gov. Accessed: 02/28/2023
• Wampanoag, who helped Pilgrims survive, win rights to tribal lands by Dana Hedgpeth. https://www.washingtonpost.com/history/2021/12/31/wampanoag-tribe-interior-department-reservation-land/. Washington Post, December 31, 2021. Accessed: 02/28/2023. Alt link.

Texas

• The Gulf: The Making of an American Sea by Jack E. Davis. https://wwnorton.com/books/9781631494024. Liveright Publishing Corporation, 2018. Book.
• Open Beaches [of Texas]. https://glo.texas.gov/coast/coastal-management/open-beaches/index.html. The Texas General Land Office. Accessed: 02/28/2023
• New Texas Open Beaches Act Amendment Explained by Megan McLaurin. https://www.surfrider.org/coastal-blog/entry/new-texas-open-beaches-act-amendment-explained. Surfrider Foundation, 2013. Blog. Accessed: 02/28/2023
• Texas beachfront property rights after hurricanes by Joseph William Singer, Professor of Law. https://scholar.harvard.edu/jsinger/blog/texas-beachfront-property-rights-after-hurricanes. Scholars at Harvard, 2016. Accessed: 02/28/2023