Colorado Environmental Law Journal > Printed > Volume 35 > Issue 1 > Cedar Point Nursery v. Hassid and Customary Use: Protecting the Public’s Right to Recreate on Dry Sand Beaches

Cedar Point Nursery v. Hassid and Customary Use: Protecting the Public’s Right to Recreate on Dry Sand Beaches

April 3, 2024 by Anna A. Schmelzle
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Abstract

This Article analyzes the Supreme Court’s new per se physical taking rule in Cedar Point Nursery v. Hassid as a potential threat to the public’s right to use dry sand beaches protected by state customary use statutes. The Court’s recent decision pronounced a per se rule that any degree of physical access to private property authorized by the government constitutes a taking requiring just compensation.

While Cedar Point expanded the application of the Fifth Amendment’s Takings Clause, common law property principles protect state customary use statutes from takings challenges. States codified the common law doctrine of customary use to protect the public’s right to recreate on dry sand beaches. Despite takings challenges to customary use statutes, the public’s customary right to dry sand beaches is a traditional common law privilege to access private property, a recognized exception to a per se taking.

The government itself never possessed the right to exclude the public from using dry sand because the public’s right to recreate on dry sand predated the government’s property interest. As a result, the government’s initial transfer of dry sand property to private owners never included the right to limit public beach access. Customary use statutes do not qualify as a taking of private property because private property owners never acquired the right to exclude the public from dry sand.

Introduction

This Article analyzes the Supreme Court’s new per se physical taking rule in Cedar Point Nursery v. Hassid as a potential threat to the public’s right to use dry sand beaches protected by state customary use statutes. Cedar Point altered half a century of takings jurisprudence by declaring that a government-authorized physical invasion of property need not be permanent to qualify as a per se taking.[2] Now, any degree of physical access to private property authorized by the government constitutes a taking requiring just compensation. While Cedar Point expanded the application of the Fifth Amendment’s Takings Clause, common law property principles protect state customary use statutes from takings challenges.

The Court listed exceptions to this rule: (1) the government action qualifies as a trespass; (2) the action is traditional background restrictions on property, such as common law access privileges or the power to abate nuisances; and (3) the owner allows a right of access in return for certain governmental benefits.[3]

Many states have codified the common law doctrine of customary use in statutes to protect the public’s right to recreate on dry sand beaches.[4] The doctrine of customary use protects the public’s ancient, reasonable, and continuous use of dry sand. In challenges to customary use statutes, property owners attempt to restrict public access to dry sand beaches and claim that the statutes constitute a per se taking by allowing the public to access private beach property.

Despite the new takings rule in Cedar Point, customary use statutes should not qualify as a taking. Customary use statutes fall within the Court’s exception for traditional background restrictions on property. The government itself never possessed the right to exclude the public from using dry sand because the public’s interest in dry sand property predated the government’s property interest.[5] As a result, the government’s initial transfer of dry sand property to private owners never included the right to limit public beach access.[6] Thus, current property owners do not possess the right to exclude the public from dry sand beaches, and customary use statutes are not a taking.

Additionally, Cedar Point expanded states’ fundamental ability to legislate and abate public nuisances created by certain property uses such as interfering with public beach access rights.[7] State statutes may prohibit actions that unreasonably interfere with a right common to the general public without affecting a taking.[8] Customary use statutes, derived from customary use at common law, abate public nuisances by restricting private property owners’ interference with the public’s right to use, enjoy, and recreate on the dry sand.[9] Given Cedar Point’s approval of a state’s power to legislate and abate public nuisances, customary use statutes defend against interferences with the public’s right to recreate on dry sand beaches.[10]

Although beachfront property owners challenging customary use statutes cite Cedar Point in briefs, taking challenges made against customary use statutes should continue to fail.[11] The Court’s expansion of the traditional common law restrictions on property serves as a defense to per se taking challenges.

Part I of this Article introduces the history of the customary use doctrine and the importance of the public’s right to recreate on beachfront property. Then, this Article bifurcates the analysis of Cedar Point. Part II describes and critiques the Court’s new per se test. Part III addresses Cedar Point’s expansion of traditional property law restrictions to include common law access privileges. This Article defends customary use statutes as a common law access privilege recognized by the Court and an abatement of property owners’ unreasonable interference with public rights.

I. Customary Use and Beach Access

A. The History of Customary Use

The concept of acquiring rights by custom first appeared in Sir William Blackstone’s 1765 publication, Commentaries on the Laws of England.[12] For a custom to be valid, it “must have continued from time immemorial, without interruption, and as of right; it must be certain as to the place, and as to the persons; and it must be certain and reasonable as to the subject matter or rights created, [and free from dispute].”[13] Customary rights acknowledge the public’s longstanding right to use private property.[14] According to Blackstone, time immemorial equated to the beginning of “legal memory,” or meant that the public use predated written records and no memory runs contrary.[15] Scholars look back hundreds of years to find informal or formal agreements between landowners and the public allowing public use of private property to prove customary use.[16] English courts applied customary use to recognize a town’s custom to dance, play games, or use dry fishing nets on certain private land.[17]

Fast forward to the 1970s in the United States, American courts and legislatures modified and applied the doctrine of customary use to affirmatively protect the public’s right to use dry sand beaches for recreational purposes like sunbathing and picnicking.[18] States recognized the public’s customary use of dry sand beaches in state statutes,[19] constitutions,[20] and common law.[21] Oregon, Texas, Florida, and the Territory of U.S. Virgin Islands passed customary use statutes.[22] Customary use laws do not create new public rights to use and enjoy beaches.[23] Rather, these laws confirm an age-old public right to use acquired through custom.[24]

American customary use laws generally require the proof of four factors; the custom must be (1) ancient; (2) reasonable; (3) without interruption; and (4) free from dispute.[25] The “ancient” factor relates to evidence since “time immemorial.”[26] The reasonableness of a custom grants courts broad discretion to either uphold or strike down a customary right.[27] Generally, a custom was reasonable as long as it was not unreasonable.[28] Effects such as prejudice, an advantage to a particular person, or an uneven distribution of public use illustrate examples of an unreasonable custom.[29]

Blackstone’s original text required that custom be continuous, without interruption, and consistent.[30] Modern courts apply one “continuous” or “without interruption” factor.[31] A local beachgoer’s infrequent use or disuse of a sandy beach does not automatically eliminate the customary right to use.[32] American customary use statutes recognize a community’s pattern of use, not individual use.[33] Establishing proof of a custom requires no adverse acts by the property owner, a unique quality of custom compared to prescriptive easements.[34] Some states rely on different common law doctrines like prescriptive easements or the public trust doctrine to secure public access to dry sand beaches.[35]

Public beach access refers to two distinct forms of access: lateral access and perpendicular access.[36] Lateral access allows the public to traverse dry sand from side to side for recreational purposes.[37] Perpendicular access allows the public to access the beach from an upland location, like a road, down to the wet sand.[38] Perpendicular beach access relates to how the public gets to the beach, whereas lateral access describes how the public can use the beach. Customary use statutes address the public’s lateral use of private beaches for recreation.[39]

B. The Importance of the Public’s Right to Beach Recreation

Preservation of public recreation on dry sand beaches is essential to a well-functioning society. Beaches provide an interplay of societal benefits: cultural, economic, environmental, and historical. Each of these values embodies an ecosystem service, which benefits community well-being.[40]

Recreation on dry sand beaches provides social utility and supports public welfare. Beaches are a space for outdoor activity that improves overall health and well-being by reducing levels of stress.[41] In dense urban environments, the beach provides a space away from life’s constant busyness and an opportunity for rejuvenation. The beach is a low-cost form of recreation, which allows people of all socioeconomic statuses to recreate and enjoy the ocean without having to invest in a dock or a boat.[42] Environmental justice demands public beach access to protect equal access of natural resources.

Public beach access supports local and national tourism. Tourists journey to coastal states for an opportunity to recreate on sandy beaches which, in turn, drives commerce in the surrounding area.[43] For example, Florida’s coastal economy employs 6.2 million people annually, equating to nearly $760 billion in gross domestic product per year.[44] In Texas, ocean-based tourism and recreation employs 3.1 million people and totals nearly $493 billion in gross domestic product each year.[45] Seventy percent of the population in the United States visits the beach for vacation generating millions in revenue for the national economy.[46] In a study on North Carolina beaches, a beach replenishment policy adding an average of 100 feet to beach width would “increase the average number of trips by visitors [to the beach] in the subsequent year from eleven to fourteen, with beach-goers willing to pay $166/trip or $1,574 per visiting household per year.”[47] Public beach access for recreation should be protected because of the economic impact of tourism.

The public’s opportunity to recreate on the dry sand beaches increases local property values.[48] The economic benefits from public beach use extend to the surrounding community. In 2022, the reported top ten cities with increased home values included three Florida cities with Tampa at the top of the list.[49] Public beach access creates a desirable amenity for locals. Access to a beach can enhance quality of life which can increase demand, and thus, property values in the area.[50]

Although the overuse of beaches may hinder proper ecosystem functions, public recreation and coastal preservation can be compatible.[51] A modified version of Steve Irwin’s quote about wildlife holds true for beach access, “If we can teach people about [the beach], they will be touched. Share [the beach] with me. Because humans want to save things that they love.”[52] The ability to experience and enjoy the beach creates a community of environmental stewards in present and future generations.[53] Children and students who interact with coastal environments will become stewards of the beach and will seek to conserve this vital ecosystem.

C. Beach Boundaries

The uniqueness or “sui generis” nature of coastal property creates many novel legal questions.[54] The line separating public and private beach ownership constantly shifts, and dry sand beaches double as a public natural resource and private backyards.

With the image of a beach in your mind, recall two distinct sections: the wet or “hard” sand and the dry or “soft” sand. The line dividing the wet and dry sand is called the mean high-water line.[55] This line represents the boundary between private and public ownership of the beach.[56] The fluidity of beaches and coastal environments create natural shifts in mean tide lines called ambulatory boundaries.[57] These natural shifts can occur gradually and imperceptibly, meaning slowly changing over a long time, or in a sudden event, also known as an “avulsive event.”[58] Ordinary inland property owners do not question or ever expect to own more or less property over the years.

The mean high tide line divides the beach between two owners: private landowners and state governments. Private ownership[59] extends seaward towards the mean high tide line.[60] Some states allow ownership down to the mean low tide line.[61] In those states, the owners take title to the land subject to the public’s use.[62] Generally, states own the wet sand, or “foreshore,” and navigable waters in trust for the public under the public trust doctrine.[63] Based on the concept of trust law, the state acts as the trustee with a duty to protect the public’s interest in the foreshore, navigable waters, and submerged lands.[64]

The public trust doctrine finds its roots in Roman history.[65] English common law adopted the public trust doctrine, and American common law followed suit.[66] The doctrine ensured that states protect the public’s use and access of the foreshore, navigable waters, and submerged lands for fishing, bathing, and engaging in commerce.[67] States recognized the importance of undisturbed public access to the coast to facilitate and protect commerce.[68] This protection guaranteed the public’s ability to use the coastline as a transportation network, like a modern highway.[69] Additionally, the ocean provided essential resources to developing societies like fish and other wildlife consumed for food.[70] Today, states go beyond these three traditional activities to include recreation in the public trust doctrine.[71]

The public trust doctrine creates public rights in sovereign property.[72] A state cannot waive the public’s right to use public trust property.[73] Consequently, the doctrine limits the government’s right to use sovereign property and restricts its right to exclude the public.[74] Common law recognized that states could convey land to private owners but the state retained the duty to protect the public right to use that land regardless of ownership.[75] Scholar Josh Eagle found that various governments in the twentieth century transferred “hundreds of millions of acres [including beachfront property] into private hands” through patent deeds.[76] But, the public trust doctrine constrained the property rights in beachfront property that the government could transfer to private owners.

II. Regulatory Takings and Customary Use Statutes

A. Right to Exclude vs. Right to Use

Property owners assert taking claims in response to customary use statutes because customary use statutes grant the public the right to use dry sand.[77] The fight between property owners and state governments over dry sand focuses on property owners’ right to use and exclude. Beachfront property is an expensive investment, so some property owners perceive public use of dry sand as lowering property values and damaging the exclusiveness of a “private” beach. In response, property owners spend more, through fencing and litigation, to protect their investments.[78] In litigation, property owners attempt to characterize dry sand beaches as private backyards that the public uses like an “odd public right-of-way.”[79]

However, private property rights do not exist in isolation.[80] Historically, common law has acknowledged “rights to enter” to balance the exclusiveness of private property and the rights of the public.[81] For example, in 2000, England and Scotland codified the public’s right to traverse private natural lands for recreational purposes, in recognition of the United Kingdom’s tradition of allowing a public right of way across private property, like farms and large open spaces, for recreation.[82] Similarly, customary use statutes recognize an ancient public right to use the dry sand beaches.[83] Where property owners expect exclusivity, the public expects a historical right to recreate on sandy beach. These competing expectations have developed into takings claims.

The Takings Clause of the United States Constitution requires that “private property [not] be taken for public use, without just compensation.”[84] The Supreme Court established three tests for a regulatory takings analysis: two per se tests and one balancing test.[85] A per se taking occurs if a government action permanently and physically invades private property without just compensation.[86] Also, a government action that results in the complete deprivation of a property’s beneficial economic use constitutes a per se regulatory taking.[87] A regulatory takings claim outside of these two per se categories requires a balancing test to determine if the government action “goes too far.”[88] Courts apply the Penn Central balancing test and weigh the property owner’s investment-backed expectations, the economic impact of the regulation, and the character of the government action.[89] Most challenges to land use regulations fall under the Penn Central category.[90]

The line between a trespass and a taking rests on the complete deprivation of landowner’s property right.[91] A trespass results in temporary damage from a tortious act, whereas the damage from a taking results in a permanent limit on a landowner’s property right.[92]

B. Physical Occupation of Property as a Taking

Physical access takings have many names: a physical taking, physical occupation, physical invasion, or physical entry.[93] Generally, a physical taking grants a third party, person, or object permanent physical access to private property. Not every government-granted access, in the form of a statute, regulation, or ordinance, rises to the level of a taking. For a per se taking to occur, the government action results in the permanent deprivation of a property right.[94]

In 1982, the Court in Loretto v. Teleprompter Manhattan CATC Corp. pronounced a permanent physical occupation of property was a per se taking.[95] In Loretto, a New York statute required landlords to affix cable boxes and cable lines on apartment roofs for tenants to receive cable.[96] The landlords could only demand reasonable payment from the cable companies, which the state valued at $1.[97] In a class action, the landlords challenged the New York statute as a deprivation of property without just compensation.[98] The class argued that the cable boxes physically occupied private property and constituted a taking.[99] The trial and appellate court found no taking occurred and upheld the New York statute because cable served the legitimate state purpose of promoting community education.[100]

The Supreme Court reversed and narrowly held that “a permanent physical occupation authorized by the government is a taking”[101] without regard to the public interests that it may serve. The reasoning rested on two factors. The cable boxes were (1) physically on and (2) permanently affixed to private property.[102] The Court found that even a minute permanent physical invasion of private land was severe because a permanent physical invasion “chops through the bundle [of property rights], taking a slice of every strand.”[103] Permanence meant that the owner was forever barred from possessing the occupied space, excluding the “occupier” from the space, or disposing of the space for value.[104] After Loretto, only a temporary physical invasion required Penn Central balancing, but Loretto’s per se test began a trend to eliminate the fact-based balancing test in the Court’s jurisprudence to come.

A few years later, in 1987, the Court addressed Loretto indirectly in a beach access easement case.[105] In Nollan v. California Coastal Commission, a beachfront homeowner applied for a renovation permit.[106] In accordance with the California Coastal Zone Management Act,[107] California would only issue the permit conditioned with the owner’s dedication of a lateral easement for public use across their privately owned dry sand beach.[108] The access easement gave the public a right to “pass and repass” over the private beach.[109] The public did not have the right to stop and recreate on the Nollans’ property.[110]

The issue in Nollan turned on the nexus between the permit condition and the government’s purpose to enact a building restriction.[111] The Nollan Court held that “a … condition that serves the same legitimate police-power purpose as a refusal to issue the permit should not be found to be a taking.”[112] The Court concluded that the Commission’s power to restrict development to protect the public’s view of the beach did not serve the same government purpose as ensuring lateral public beach access.[113] Thus, the easement unlawfully took private property because the regulation failed the nexus test established in Nollan.[114]

In a hypothetical, the Nollan majority suggested that if the California regulation forced the Nollans to allow public use of their property to increase public beach access, rather than requiring it as a condition to a permit, that would likely constitute a per se physical taking.[115] Based on Loretto, the right to physically invade property may constitute a taking “even though no particular individual is permitted to station himself permanently upon the premises.”[116] A taking may have occurred because individuals were given a permanent right to cross the property.[117]

C. Cedar Point’s New Per Se Rule

Cedar Point Nursery v. Hassid, a 2021 decision, expanded the per se Loretto rule to all “government-authorized entries of private property…regardless of the duration, purpose, or impact.”[118]

The conflict in Cedar Point began with labor union disputes.[119] Two California agricultural employers, a strawberry grower and a citrus grower, blocked union workers from soliciting union support on their property.[120] The labor union asserted that the California Agricultural Labor Relations Act of 1975 gave the union the right to access the agricultural employers’ property three hours per day, 120 days per year, to gather support for the union.[121] The regulation required the union to file written notice of their intent to solicit union support and serve the notice on the agricultural employers prior to accessing the private property.[122] If the landowners denied the union workers access to their property, then the employers would face state sanctions.[123] The growers filed suit against California’s Agricultural Labor Relations Board arguing that the regulation created an easement on private property for public use without just compensation.[124]

The District Court denied the growers’ claim, finding that the regulation provided only temporary physical access to private property.[125] Thus, the regulation failed to qualify as a per se Loretto taking and required Penn Central balancing.[126] The Court of Appeals affirmed, stating that the regulation did not fall into the per se physical invasion category due to its temporary nature.[127] The growers appealed, and the Supreme Court granted certiorari.

The question presented to the Supreme Court asked whether the California access regulation constituted a per se taking.[128] The Board argued that the access regulation constituted a land use regulation subject to Penn Central balancing and did not meet the permanence requirement for a per se Loretto taking.[129]

In the majority opinion, Chief Justice Roberts found that the regulation granted a physical invasion of private property and qualified as per se taking.[130] The Court rejected the Board’s argument that “the access regulation did not qualify as a per se taking because . . . [the regulation] did not allow for permanent and continuous access.”[131] According to the majority, an analysis of a limitation on the right to exclude should be the same, notwithstanding the duration.[132]

Based on Loretto, the Cedar Point Court reasoned that any degree of physical intrusion, regardless of duration, constituted a per se taking.[133] Loretto found that an unconstitutional taking occurs even if a “minimal economic impact on the owner” resulted.[134] Therefore, the duration of the union workers’ access only related to the amount of compensation due, not whether a taking occurred.[135]

The regulation failed to qualify as a government action regulating a property owner’s right to use.[136] In the Court’s view, the regulation was not like a standard land use regulation which generally requires Penn Central balancing.[137] Rather, the regulation’s grant of public access to private property equated to a physical “invasion.”[138]

Cedar Point’s rhetoric built on prior precedent by emphasizing “one of the most essential sticks in the bundle,” the right to exclude.[139] The Court characterized the regulation as a violation of private property rights because the regulation authorized a third party the right to “take access”[140] or “invade” the growers’ property, thereby limiting the growers’ right to exclude.[141]

The Cedar Point decision acknowledged the distinction made in Loretto between permanent and temporary physical invasions and relied on dicta in Nollan to explain how a per se physical taking may occur even though a regulation does not grant permanent physical access.[142] The Cedar Point Court mirrored the regulation at issue to Nollan’s conditional public use requirement.[143] California’s high tide season made the Nollans’ easement inaccessible to the public for parts of the year.[144] The Cedar Point majority stated that the access easement in Nollan would have qualified as a per se physical taking even though changing tides made the public’s use less than 365 days a year.[145]

What matters is not that the easement notionally ran round the clock, but that the government had taken a right to physically invade the Nollans’ land. And when the government physically takes an interest in property, it must pay for the right to do so . . . The fact that a right to take access is exercised only from time to time does not make it any less a physical taking. [146]

In sum, the Cedar Point Court found the regulation to be a per se taking because the government “appropriated” a right of access, like the government action in Nollan, which “appropriated” physical access to private property by granting intermittent public beach access.[147]

Applying Loretto and Nollan, along with other Supreme Court precedent, the Cedar Point majority decided that all “government-authorized invasions of property” granting temporary physical use to private property are a per se taking and require just compensation.[148]

D. The Court Applied the Wrong Rule

Supreme Court precedent does not support Cedar Point’s reasoning or holding. Before Cedar Point, a per se Loretto taking required permanent and physical occupation of private property.[149] Temporary physical interferences of property fell under Penn Central to weigh public benefits with the private economic burdens.[150] The temporary interference in Cedar Point should have been analyzed under the Penn Central balancing test.

Although a physical invasion of property may have supported the finding that a taking occurred in Cedar Point, physical access is not determinative a taking occurred.[151] The damage of a per se physical taking rests on the permanence of the government action.[152] Without permanence, property owners cannot argue that all the strands in the property rights bundle have been cut. In Cedar Point, the growers could still use their property while the union workers exercised access to the farms.[153] The Court’s view that physical access was determinative because the growers could not exclude the union workers does not accurately represent the Court’s prior holdings. The union workers never permanently interfered with the growers’ right to exclude. Thus, the growers never lost their right to exclude.

Cedar Point inaccurately interpreted dicta from Nollan.[154] The Cedar Point majority specified that changing tides would limit the public’s use of the Nollans’ property to less than 365 days a year, and, thus a taking may occur when a temporary government action physically occupies private property.[155] Yet, this logic stemmed from a hypothetical in dicta.[156] A permanent physical occupation would have occurred “where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed…”[157] The Nollan Court speculated the access easement may qualify as a per se taking.[158]

The result in Nollan did not turn on the physicality of the easement. The question at hand was whether the government’s purpose for the restriction was connected to the harm caused by the Nollans.[159] Consequently, Cedar Point’s interpretation of the dicta in Nollan altered Nollan’s holding and meaning.

In sum, the Court applied the wrong takings rule and, consequently, created a distorted, new per se takings rule. The Court failed to abide by precedent and the evolution of United States property law. Despite the Court’s ruling in Cedar Point, takings law should not hinder public beach access rights. The remainder of this Article explains the application of Cedar Point’s new rule and how the rule’s exceptions secure public beach access.

E. How Does Cedar Point’s New Rule Effect Customary Use Statutes?

Cedar Point’s new test does not require a per se physical taking to be permanent.[160] At first glance, Cedar Point’s new categorical rule suggests that customary use statutes may qualify as per se physical taking of private property and require just compensation. Customary use statutes allow the public to use dry sand beaches. After Cedar Point, a court only needs to find that a government action allowed physical access of private property for a taking to occur. The Supreme Court does not provide guidance on how frequent or how long the use must be.

The Court’s mischaracterization of Nollan poses a threat to customary use statutes.[161] Customary use laws allow members of the public to recreate on private property, subject to time and use restrictions,[162] similar to the easement in Nollan where the public could laterally pass over dry sand.[163]

A per se takings analysis of coastal property fails to weigh the character of the government action, a relevant factor in a Penn Central takings analysis. Penn Central balancing assesses the property owner’s investment-backed expectations, the economic impact of the regulation, and the character of the government action.[164] A government action protecting public beach use may qualify as a per se taking or a court could view the regulation as going “too far.”[165] But now, property owners can argue that customary use statutes grant physical use to private beaches, and, under Cedar Point, a court should never consider the character of the government action. The Cedar Point per se test means that courts may never discuss the public benefits of public beach use in customary use disputes. Even Justice Marshall, the creator of the per se Loretto taking rule, recognized the usefulness of weighing property interests in the context of coastal property and public use.[166] “Particular parcels are tied to one another in complex ways, and property is more accurately described as being inextricably part of a network of relationships…”[167]

III. Cedar Point’s Expansion of Traditional Property Law Restrictions

Cedar Point’s dramatic expansion of the per se physical taking test came with a reaffirmation of an important exception to takings: the nuisance and background principle of property law exception.[168]

A. History of the Nuisance and Background Principles of Property Law Exception

Hadacheck v. Sebastian is an early Supreme Court case respecting the states’ power to regulate nuisance-like behavior without affecting a taking.[169] In 1915, a city of Los Angeles ordinance prohibited a landowner from engaging in brickmaking on his property atop a clay bed valued at $800,000.[170] The ordinance diminished the owner’s property value to less than $60,000.[171] The landowner argued that the government took his property without just compensation and the government could not regulate his property because his business did not constitute a nuisance.[172]

The Supreme Court held that the City could prohibit the operation of the landowner’s lawful business and deem that business a nuisance based on its particular location.[173] The state’s police power allowed for the regulation of real property even if the regulation resulted in a diminution of value because the regulation was necessary for the appropriate development of the city.[174] The City could not exercise its power arbitrarily or with unjust discrimination.[175] Thus, the government could reasonably determine the presence of a business was incompatible with neighboring uses and regulate that property without affecting a taking.[176]

Hadacheck originated in a line of cases that represented the “harmful or noxious uses” principle.[177] This principle attempted to describe why a government regulation may take away property rights without requiring just compensation.[178] These cases protected state policy decisions with widespread public benefit.[179] A use of property that interfered with a beneficial state policy would be “noxious or harmful,” and property owners had no right to use their property in that way.[180] Courts applying this test considered whether the land use regulation advanced a “legitimate state interest[.]”[181] Courts weighed the “harm-prevented” with the “benefit-conferred.”[182]

Lucas v. South Carolina Coastal Council recharacterized the “harmful or noxious use” test.[183] In Lucas, a beachfront property developer contended that an erosion control regulation prohibiting all development destroyed the property’s beneficial economic use.[184] The thrust of the Lucas decision, written by Justice Scalia, set forth the second per se taking test.[185] A taking occurs when a landowner suffers complete deprivation of “all economically beneficial use of [their] land.”[186] The Court did not determine if such a deprivation occurred and remanded the case to the South Carolina State Court to assess if the regulation simply codified a “result that could have been achieved in the courts—by adjacent landowners (or other uniquely affected persons) under State’s law of private nuisance, or by the State under its complementary power to abate nuisances that affect public generally . . . .”[187]

Departing from the “harmful or noxious use” exception, the Lucas opinion found the Hadacheck line of cases arbitrary because the “distinction between ‘harm-preventing’ and ‘benefit-conferring’ regulation[s] [was] often in the eye of the beholder.”[188] The regulation both prevented the harm to South Carolina’s coastline and benefited its ecological health.[189] The Lucas Court worried about state legislatures asserting this exception to defeat all takings claims because a state legislature could simply recite the “noxious-use” justification.[190]

The majority decision in Lucas refined the “noxious use” exception and held that owners acquire title to land subject to pre-existing limitations found in state nuisance law.[191] A nuisance is “a condition, activity, or situation that interferes with the use or enjoyment of property.”[192] For example, state nuisance law would bar the issuance of a permit to an owner of a lake-bed intending to engage in a landfill operation if that landfill operation would result in flooding the neighbor’s property.[193] Although this government action would reduce the owner’s lake-bed property value, the owner would not have a viable takings claim because the owner never had the right to use their property in a way that could cause injury to the property of another.[194] Consider if the government required the owner of a nuclear plant to remove all improvements to the land when the government discovered the plant rests on an earthquake fault line.[195] The potential damage from a leaking nuclear plant would threaten the public health of the community and constitute a public nuisance.[196] Thus, a government action expressly eliminating an owner’s ability to engage in a nuisance does not equate to a taking because a property owner has no right to engage in a nuisance.[197]

The Lucas Court believed it recognized an exception already in existence for permanent physical takings. “Where ‘permanent physical occupation’ of land is concerned, . . . we assuredly would permit the government to assert a permanent easement that was a pre-existing limitation upon the land owner’s title.”[198]

1. Background Principles of Property Law

Kennedy’s concurrence in Lucas supplemented the majority opinion with the common law principle of property exception.[199] This exception applied to state statutes codifying common law doctrines.[200] States enacting land use laws in response to changing conditions could go beyond the scope of preventing nuisances and still be considered an exception to a taking.[201] For example, certain properties like “[c]oastal property may present such unique concerns . . . that the State can go further in regulating its development and use than the common law of nuisance might otherwise permit.”[202] Kennedy’s concurrence provided a more flexible approach to the Lucas exception.[203]

As applied, Lucas held that a government action resulting in the total deprivation of the value of property or a permanent physical occupation of property is not a taking as long as the action duplicates a background principle of state property law or nuisance.[204] The background principle exception allows all fifty states to have different exceptions to takings based on common law.[205] Based on this exception, scholars Michael Blumm and Lucus Ritchie have suggested that the first question in a takings analysis “is whether the property use at issue was in fact one of the sticks in the bundle of rights acquired by the owner.”[206]

The background principle of property law explained by Blumm and Lucus epitomizes the Latin phrase nemo dat quod non habet or the nemo dat rule. Nemo dat means “no one can give what he has not got.”[207] To conceptualize this idea, consider the sale of a parcel of land. If a property owner attempts to convey property without legal, vested title, then the transfer is unenforceable. The property owner does not have the right to sell what they do not own. In the context of takings law, a property owner cannot defend their right to use property in a way the property owner never possessed.

B. Cedar Point’s Expansion of the Exceptions to a Per Se Physical Taking

The Cedar Point Court defined additional exceptions to a per se taking such as trespass; common law access privileges (including Fourth Amendment searches and necessity); and instances where the property owner allows an access right in return for a permit or license.[208] Isolated physical invasions not authorized by the government are a trespass in tort, rather than a taking.[209]

The Cedar Point decision expanded the background principles of state law exception to include “traditional common law privileges to access private property.”[210] The new exception for access privileges included public or private necessity, which allows individuals to enter private property to avoid serious harm or avert imminent public disasters.[211] The Cedar Point Court also noted the right to enter property for a law enforcement arrest or a reasonable search.[212] Justified by the reasoning in Lucas, “government searches that are consistent with the Fourth Amendment and state law cannot be said to take any property right from landowners.”[213] This list of access privileges is not exhaustive because “many government-authorized physical invasions will not amount to takings because they are consistent with longstanding background restrictions on property rights.”[214] Cedar Point also reiterated the application of nuisance as an exception to a physical per se taking.[215]

The Court also created an exception that resembled the nexus test in Nollan.[216] A property owner that cedes a right of access to receive certain benefits does not result in a per se taking.[217] This exception insinuates a quid pro quo relationship between the government and landowner, where the landowner receives a beneficial permit or license in exchange for the government’s authorized access of the property.[218]

In the end, the California access regulation in Cedar Point did not fall under any exception to a physical taking.[219] The government authorized physical access of union workers on private property, unlike a trespass where there is no government authorization, resulted in a taking.[220] The union workers’ right to access private property did not qualify as a background principle of state common law, like a Fourth Amendment search or abating a nuisance.[221] Nor did the access regulation provide any relevant “benefit . . . to agricultural employers or [avert] any risk posed to the public.”[222]

1. Customary Use as a Traditional Property Law Restriction

The public’s customary right to recreate on dry sand beaches is a background principal of state property law; a recognized exception to a takings claim.[223] This Article reasons that customary use rights in dry sand beaches preceded the initial transfer of title from government to private ownership.[224] Thus, customary use statutes recognize a common law public access privilege and do not take private property because private beach front owners never acquired the right to exclude the public from dry sand.[225]

Custom represents an ancient common law doctrine protecting the public’s right to use and access the sandy beach.[226] In Cedar Point, the dissent aptly questioned if the Court limited this exception to common law principles that existed in 1789.[227] If so, that requirement poses no issue for customary use statutes based on common law. State courts repeatedly cite Blackstone’s Commentaries, written in 1765, as the first treatise to recognize customary use.[228] More specifically, the U.S. Virgin Islands Open Shorelines Act refers to the public’s historic right to recreate on dry sand beach since Danish rule in 1754 and the public’s “past and present” use of dry sand as “a way of life” for islanders.[229]

The background principle of property law exception requires courts to question whether property owners ever acquired a certain stick in the property rights bundle from the grantor.[230] If the government did not have the right to exclude the public from dry sand because the public secured a customary right to use the land prior to land transfers, then the government could not transfer that right to property owners. When the factors of customary use—such as being reasonable, without interruption, and free from dispute—are proven,[231] then takings claims should fail at a threshold level, even if the government granted the public physical use of private property.[232]

As applied to customary use statutes, the government’s initial transfer of dry sand property to private owners likely never included the right to limit public beach access.[233] According to Josh Eagle, the rule of construction for government patents, the instruments used to transfer title from the government to landowners, requires an ambiguity in a patent to be resolved in favor of the grantor, the government in customary use cases.[234] Eagle states that patent transfers were rarely specific enough to transfer a limitation on public property rights because the patents consisted of boilerplate language and involved significant fraud.[235] The patents could only convey rights the government expressly intended to convey.[236] Thus, the patents including beach front property likely never transferred property free from public use.[237] Following Eagle’s reasoning, if the government patents failed to transfer the right to exclude the public from dry sand, then property owners bringing takings claims against customary use statutes never legally possessed the right to exclude the public from dry sand either. As the nemo dat rule puts simply, the government could not give what it did not have.[238] Nemo dat bolsters the idea that property owners cannot enforce certain property rights if the title they received never possessed that vested right.

Two Oregon cases illustrate this reasoning applied to customary use statutes: State ex rel. Thornton v. Hay and Stevens v. City of Cannon Beach. State ex rel. Thornton v. Hay marked the revival of the customary use doctrine in the United States.[239] In 1967, the Oregon legislature enacted the Beach Bill in response to public outrage spurred by a beachfront motel owner who blocked off dry sand beaches for private use only.[240] The Beach Bill acknowledged the public’s “frequent and uninterrupted use of the ocean shore . . . where such use has been legally sufficient to create rights or easements in the public through dedication, prescription, grant or otherwise[.]”[241] The motel owner, whose actions triggered the Beach Bill, challenged the Bill based on a takings theory in the Oregon Supreme Court.[242] The state argued that public use of the beach met the elements of a prescriptive easement and characterized the Beach Bill as a zoning law within the state’s police power.[243] The trial court found facts to support the establishment of a public rights easement for recreational purposes on the disputed sand.[244]

On its own accord, the court in Thornton declared the public’s longstanding right to recreate on dry sand based on the public’s customary use.[245] The doctrine of customary use was the most appropriate method to ensure public use of dry sand because dry sand runs parallel to public trust lands.[246] Referencing Oregon’s public trust doctrine and the public’s recognized rights in the foreshore since 1899, the court reasoned that the upland property patent holder never possessed the full bundle of property rights.[247] Government land transfers of dry sand beaches abutting the wet sand never included the right to exclude the public. The public enjoyed dry sand adjunct to the foreshore since the establishment of the state’s political history.[248] The evidence of a written record did not invalidate the evidence of a custom, where evidence of such custom existed.[249]

To prove evidence of ancient use, the Thornton court referenced the “time of the earliest settlement,” when Oregon’s first settlers found the “aboriginal inhabitants” clam-digging and cooking fires on dry sand.[250] From then on, the public assumed a right to use dry sand for “picnics, gathering wood, [and] building warming fires[.]”[251] Based on the public’s continuous and notorious use of dry sand beaches after statehood, the court created a presumption of “notice” of custom that property owners must heed.[252]

In 1993, one year after Lucas, the Supreme Court of Oregon faced a similar takings challenge against the Beach Bill in Stevens v. City of Cannon Beach.[253] The city denied the Stevenses’ permits to construct a seawall on two dry sand lots. The Stevenses argued Thornton did not apply to their property because they purchased the property before the court decided Thornton in 1969.[254] The trial court and appellate court disagreed, relying on Thornton and Lucas to hold that the Beach Bill did not constitute a taking because the Stevenses’ property interests never included development rights that could interfere with the public’s use of dry sand.[255]

On appeal, the Oregon Supreme Court re-considered Thornton’s establishment of customary use in light of Lucas.[256] The court found that the Stevenses took title to their property subject to the public’s notorious use of dry sand and affirmed the trial court’s decision.[257] Oregon’s Beach Bill and Thornton did not newly legislate or decree the common-law doctrine of customary use, but instead recognized a restriction in the property’s title itself based on background principles of the state’s property law.[258]

Thornton and Stevens illustrate the need to evaluate the public’s right to use dry sand in relation to submerged public trust land due to the fluid, ambulatory boundary between the wet and dry sand. The waterbodies and wet sand—for the use and benefit of the people based on the public trust doctrine—runs parallel to dry sand beaches.[259] Given the nature of the ambulatory boundary between the wet and dry sand, the court reviewed the owner’s title to the property in relation to the public rights in dry sand.[260] The proximity of the dry sand beach to public trust lands helped determine the ancientness of the public use of dry sand.[261] State public trust doctrines historically recognize the public’s use of the foreshore for fishing, navigation, commerce, and, more recently, recreation. To exercise public rights in the wet sand, the public must have used dry sand for camping, resting, and other forms of recreation.[262] The evidence of Oregon’s first settlers discovering individuals clam-digging and cooking fires on dry sand supported the court’s finding that public use predated government land transfers.[263] As a result, the public gained rights to recreate on dry sand based on the public’s protected use of wet sand.

With this logic, the Oregon Court almost created something like a “trust-appurtenant easement.”[264] This public right stemmed from the public’s historical need to use the foreshore in conjunction with the public’s right to use the wet sand protected by the public trust doctrine.[265]

Thus, applying Eagle’s rule of construction for government patents, property transferred including dry sand alongside public trust lands likely did not transfer the right to exclude the public from the dry sand.[266] The government never expressly intended to convey the right to exclude the public from dry sand, nor did it possess that right.[267] Just as the patents transferring the wet sand were encumbered by public rights protected by the public trust doctrine, the public rights established through custom encumbered the transfer of dry sand property.[268] Oregon’s codification of a public right to recreate based on custom did not take anything from the property owners because the government never possessed the power to exclude or limit the public’s use of dry sand in Oregon. The public’s right to use dry sand created a pre-existing limitation on an owner’s right to use and exclude.[269]

Other state customary use statutes should continue to prevail in the face of takings challenges because state legislatures simply codified a common law access privilege, an exception recognized in Cedar Point.[270] The government’s initial transfer of dry sand property to private owners never included the right to limit public beach access. Considering Cedar Point, property owners cannot succeed in a takings challenge against customary use statutes codifying a common law access right because the grantor, the government, never possessed the right to exclude or interfere with public use. Nemo dat quod non habet—the government could not give what it did not have. Thus, current beach front property owners never possessed the right to exclude the public from dry sand beaches.

The limitation on a property owner’s right to exclude subject to common law access privileges supports the constitutionality of customary use statutes. Cedar Point’s recognition of common law access privileges as an exception to per se takings confirms lower courts’ expansive application and scholars’ interpretation of states’ traditional restrictions on property.[271]

a. Customary Use Statutes and Public Nuisance

The states’ power to abate a property owner from engaging in a public nuisance serves as another example of Cedar Point’s exception for traditional restrictions on property.[272] State governments can legislate actions in a way that mirrors a result adjacent landowners could achieve in state courts.[273] Some customary use statutes provide actions to abate public nuisances by giving attorney generals the power to bring enforcement actions against property owners interfering with beach access, like a public official empowered to bring public nuisance abatement actions. [274] Cedar Point affirmed states’ fundamental ability to legislate and abate public nuisances created by certain property uses, such as interfering with public beach access rights, without affecting a taking.

States can enact laws to prohibit property owners from engaging in nuisances and abate actions that “unreasonably interfere with a right common to the general public”[275] without affecting a taking under Cedar Point.[276] In many customary use disputes, property owners attempt to restrict public access to dry sands beach by putting up signs and fences.[277] Such actions are unreasonable interferences with and violations of the public’s customary right to use, enjoy, and recreate on dry sand. Customary use statutes fall under the nuisance exception to a taking because the statutes enact a restriction on private property owners’ ability to engage in a public nuisance, something that property owners never had a right to do. The logic of this exception originated in Hadacheck and confirmed in Cedar Point.[278]

The customary rights established under customary use statutes are public rights common to the general public.[279] For example, in City of Daytona Beach v. Tona-Rama Inc, the Florida Supreme Court protected the public’s right and interest to use dry sand beaches, applying the customary use doctrine.[280] In Tona-Rama, the defendant secured a permit to construct an observation tower on a privately owned dry sand beach.[281] The plaintiff filed to enjoin the construction of the tower by asserting a prescriptive right to use the defendant’s dry sand beach.[282]

Following other state courts, the Florida Supreme Court held that the public had a customary right to use dry sand because sunbathing tourists made continuous, uninterrupted use of dry sand owned by the defendant.[283] A property owner could only make use of its property in a way that was consistent with the public’s use or did not interfere with the public’s right to use, enjoy, and recreate on dry sand.[284] The public’s customary use did not create any interest in the land itself, but the property owner could not unilaterally revoke the public’s right to use.[285] Ultimately, the Florida Supreme Court held that an observation tower did not interfere with the public’s recreational use of the property because an observation tower was consistent with the public’s general recreational use.[286]

Although not expressly applying the principles of nuisance, Tona-Rama affirms the concept that customary use statutes can restrict a property owner’s ability to engage in behavior that unreasonably interferes with the public right to use dry sand.[287] The customary right to access and recreate on dry sand is a right enjoyed by all members of the public. The government has the power to restrict harmful actions that property owners never had the right to do. Just as a nuclear plant on an earthquake fault line poses a danger to public health, signs and fences baring the public from using the sandy beach threatens the public’s customary right to recreate.[288] A customary use statute that codifies a limitation on the property owner’s ability to engage in a public nuisance does not constitute a taking because a property owner may only use dry sand in a way that does not interfere with the public’s right to recreate.

Conclusion

Although beachfront property owners may look to Cedar Point to claim that the physical access granted by customary use statutes is determinative that a taking occurred, public beach rights advocates have many defenses to defeat Cedar Point’s per se physical taking test.

First, customary use statutes codify a common law access privilege recognized by the Supreme Court as an exception to per se taking. The government itself never possessed the right to exclude the public from using dry sand because the public’s use of dry sand pre-dated the government’s property interest. As a result, the government’s initial transfer of dry sand property to private owners never included the right to limit public beach access.

Second, customary use statutes recognize a state’s power to abate nuisances that affect the public. Customary use statutes abate public nuisances by restricting private property owners’ interference with the public’s right to use, enjoy, and recreate on dry sand.

Dry sand beaches must remain accessible for public use because of its unique relationship to public trust lands and the public’s ubiquitous, long-standing right to use dry sand for recreation and enjoyment. The Florida Supreme Court captured the essence of preserving the public’s right to recreate on dry sand beaches in Tona-Rama:

There is probably no custom more universal, more natural or more ancient, on the sea-coasts, not only of the United States, but of the world, than that of bathing in the salt waters of the ocean and the enjoyment of the wholesome recreation incident thereto. The lure of the ocean is universal; to battle with its refreshing breakers a delight. Many are they who have felt the lifegiving touch of its healing waters and its clear dust-free air. Appearing constantly to change, it remains ever essentially the same.[289]

Notwithstanding Cedar Point’s expansive per se physical taking rule, state courts should continue to affirm the public’s customary use right to recreate on dry sand beaches, an ancient common law restriction on beachfront property.

  1. *J.D. University of Miami School of Law, 2023; Robert-Greenberg Traurig LL.M. in Real Property Development University of Miami School of Law, 2023; Associate Attorney, Nelson Mullins Riley & Scarborough LLP. The author thanks Jessica Owley for her comments, encouragement, and patiently answering many questions.   ↑
  2. Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2074 (2021); Josh Blackman, Cedar Point Nursery v. Hassid Quietly Rewrote Four Decades of Takings Clause Doctrine, The Volokh Conspiracy (June 25, 2021), https://reason.com/volokh/2021/06/25/cedar-point-nursery-v-hassid-quietly-rewrote-four-decades-of-takings-clause-doctrine/, [hereinafter Blackmun]. ↑
  3. See Cedar Point Nursery, 141 S. Ct. at 2078–80. ↑
  4. See City of Daytona Beach v. Tona-Rama, 294 So. 2d 73, 79 (Fla. 1974). ↑
  5. See generally Josh Eagle, On the Legal Life-History of Beaches, 2023 U. Ill. L. Rev. 227, 241–45 (2023) [hereinafter Eagle]. ↑
  6. State ex rel. Thornton v. Hay, 462 P.2d 671, 673 (Or. 1969). ↑
  7. See Cedar Point Nursery, 141 S. Ct. at 2078–79. ↑
  8. See Or. Rev. Stat. § 390.610 (2006); Fla. Stat. § 163.035 (2019); Tex. Nat. Res. Code Ann. § 61.011 (West 2019). ↑
  9. Tona-Rama, 294 So. 2d at 78. ↑
  10. See Cedar Point Nursery, 141 S. Ct. at 2078–79. ↑
  11. Moshe Adler, How a farmworkers’ Supreme Court case could affect our beaches in Florida, Tampa Bay Times (June 3, 2021), https://www.tampabay.com/opinion/2021/ 06/03/how-a-farmworkers-supreme-court-case-could-affect-our-beaches-in-florida-column/. ↑
  12. David J. Bederman, The Curious Resurrection of Custom: Beach Access and Judicial Takings, 96 Colum. L. Rev. 1375, 1382 (1996) (Blackstone’s work published in 1765). Blackstone split the “law of custom” into two separate legal ideas. He first described the common law or “unwritten laws of England” as a law of custom enjoyed by citizens of an entire country. Whereas “customary law,” not to be confused with common law, related to specific customary rights of certain people in certain places. This Article addresses the latter, customary law, by studying public rights on private beaches established through customary use statutes as a doctrine that developed through the common law. ↑
  13. Tona-Roma, 294 So. 2d at 78. ↑
  14. Id. at 79. ↑
  15. Bederman, supra note 11, at 1386–87 (legal memory referenced to 1189 AD in England). ↑
  16. Eagle, supra note 4, at 238, 241–45. ↑
  17. Bederman, supra note 11, at 1381–82. ↑
  18. See Tona-Rama, 294 So. 2d at 79; Thornton, 462 P.2d at 671. ↑
  19. Or. Rev. Stat. § 390.610; Fla. Stat. § 163.035. ↑
  20. Haw. Const. art. XII, § 7. ↑
  21. See Tona-Rama, 294 So. 2d at 79, Thornton, 462 P.2d at 671. ↑
  22. See Or. Rev. Stat. § 390.610; Tex. Nat. Res. Code Ann. § 61.011; Fla. Stat. § 163.035; V.I. Code Ann. tit. 12, § 401. A North Carolina statute included language like “frequent, uninterrupted, unobstructed, from time immemorial,” similar to the factors used to establish customary use but referred to these rights as “public trust rights.” N.C. Gen. Stat. § 77-20(d) (2023). ↑
  23. Alyson Flournoy et al., Recreational Rights to the Dry Sand Beach in Florida: Property, Custom and Controversy, 25 Ocean & Coastal L.J. 1, 35 (2020) [hereinafter Flournoy]. ↑
  24. Id. ↑
  25. Tona-Rama, 294 So. 2d at 78. ↑
  26. Id. ↑
  27. Bederman, supra note 11, at 1392–93. ↑
  28. Id. at 1393–94. ↑
  29. Id. at 1394–95. ↑
  30. Id. at 1387–88. ↑
  31. See Trepanier v. Cnty. of Volusia, 965 So. 2d 276, 289–90(Fla. Dist. Ct. App. 2007). ↑
  32. Bederman, supra note 11, at 1388. ↑
  33. Id. at 1455 (referencing Carol Rose point that modern customary use imprecisely identifies the rights-holders). ↑
  34. See Tona-Rama, 294 So. 2d at 76–79 (contrasted a prescriptive easement, which has an adversity requirement, with customary use, which does not). ↑
  35. Eagle, supra note 4, at 232–34. ↑
  36. See Donald C. Baur et al., Ocean and Coastal Law and Policy, 51 (2d. 2015) [hereinafter Baur]. ↑
  37. Id. ↑
  38. Id. ↑
  39. Id. ↑
  40. The concept of ecosystem services helps to explain the many benefits societies receive from encouraging beach access and coastal conservation. Ecosystem services are ‘‘the benefits people obtain from ecosystems’’ like food, clean water, recreation, and ecotourism. Ecosystem services gives natural capital an elevated role in policy making by placing tangible and quantifiable value on an ecosystem. ↑
  41. Mikel Subiza-Perez et al., Green and blue settings as providers of mental health ecosystem services: Comparing urban beaches and parks and building a predictive model of psychological restoration, Landscape & Urban Planning 1 (Dec. 2020), https://doi.org/10.1016/j.landurbplan.2020.103926. ↑
  42. Eagle, supra note 4, at 230. ↑
  43. Id. at 247. ↑
  44. Florida, Off. for Coastal Mgmt., https://coast.noaa.gov/states/florida.html (last visited May 25, 2022). ↑
  45. Texas, Off. for Coastal Mgmt., https://coast.noaa.gov/states/texas.html (last visited May 25, 2022). ↑
  46. Edward B. Barbier et al., The Value of Estuarine and Coastal Ecosystem Services, 81 Ecological Monographs 169, 184 (2011) [hereinafter Barbier]. ↑
  47. Id. at 184–85. ↑
  48. Matt Parker, Waterfront Property: Three Factors That Determine Value, Dwell (2017), https://www.dwell.com/amp/article/waterfront-property-three-factors-that-determine-value-part-i-57c88cf7. The difference in property values stem from basic supply and demand. The demand for coastal property has skyrocketed. Coastal populations in the United States increased by 34.8 million between 1970-2010, a rate three times faster than the national average, Baur, supra note 35. ↑
  49. Claire Ballentine, Home Values in Already Hot U.S. Market to Surge 14% This Year, Zillow Says, Bloomberg, (Jan. 4, 2022), https://www.bloomberg.com/news/articles/2022-01-04/top-10-hottest-housing-markets-in-2022-zillow-sees-u-s-home-prices-surging-14. ↑
  50. See Norman Miller et al., The Impact of Waterfront Location on Residential Home Values Considering Flood Risks, 11 J. of Sustainable Real Estate 84, 86 (Jan. 2019) (finding “an unobstructed ocean view adds 68.3% to value if the property is located within 0.1 miles of the ocean, but only 44.7% if the property is located a mile away from the water and 30.6% if located two miles from the water”). ↑
  51. See ACT: At The Beach, Env’t Prot. agency, https://www.epa.gov/beaches/act-beach (last visited July 30, 2023). ↑
  52. See Steve Irwin: Wildlife Warrior, VIA Aquarium, https://viaaquarium.com/ccsteveirwin (last visited August 21, 2023). ↑
  53. See id. ↑
  54. See Thornton, 462 P.2d at 673. ↑
  55. See Alyson C. Flournoy, Beach Law Cleanup: How Sea-Level Rise Has Eroded the Ambulatory Boundaries Legal Framework, 42 Vt. L. Rev. 89 (2017) [hereinafter Flournoy]. ↑
  56. Id. ↑
  57. Flournoy, supra note 22, at 9. ↑
  58. Id. at 105. ↑
  59. Owners of beachfront property or “littoral owners” usually own land fee simple absolute. Fee simple absolute means that the owner possesses the broadest property interest allowed by law. Fee Simple, Black’s Law Dictionary (11th ed. 2019). Property rights, commonly referred to as a “bundle of rights,” include the right to possess, use, exclude, and transfer. Property, Black’s Law Dictionary (11th ed. 2019). ↑
  60. Colin H. Roberts, It’s All Mine, Stay Off, and Let Me Do What I Please: An Abyss Between the Rights and Desires of Coastal Property Owners and Public Privileges and Protections?, 18 Ocean & Coastal L.J. 255, 257 (2013) [hereinafter Roberts]. ↑
  61. Id. (Delaware, Maine, Massachusetts, New Hampshire, and Virginia). ↑
  62. Baur, supra note 35, at 54–55. ↑
  63. Flournoy, supra note 54, at 99. ↑
  64. Baur, supra note 35, at 44. ↑
  65. See Erica Kranz, Sand for the People: the Continuing Controversy over Public Beach Access to Florida’s Beaches, 83 Fla. B.J. 10, 10 (June 2009) [hereinafter Kranz]; Baur, supra note 35, at 44. The idea of the public trust doctrine originated from Roman Emperor Justinian’s often-quoted phrase, “By the law of nature these things are common to all mankind–the air, running water, the sea and consequently the shores of the sea.” ↑
  66. Baur, supra note 35, at 45. ↑
  67. Flournoy, supra note 54, at 99. ↑
  68. Eagle, supra note 4, at 253. ↑
  69. Id. ↑
  70. Barbier, supra note 45, at 184. ↑
  71. Robin Kundis Craig, A Comparative Guide to the Eastern Public Trust Doctrines: Classifications of States, Property Rights, and State Summaries, 16 Penn St. Env’t. L. Rev. 1, 18 (2007). ↑
  72. Eagle, supra note 4, at 247. ↑
  73. Timothy M. Mulvaney & Brian Weeks, “Waterlocked”: Public Access to New Jersey’s Coastline, 34 Ecology L.Q. 579, 587 (2007). ↑
  74. Eagle, supra note 4, at 255. ↑
  75. Id. at 257. ↑
  76. Id. at 227 (colonial, federal, foreign sovereign, or state governments). ↑
  77. 26 Am. Jur. 2d Eminent Domain § 9 (2004). ↑
  78. John Kennedy, Fences on the beach?, Herald-Tribune (Apr. 14, 2018), https://www.heraldtribune.com/story/news/local/sarasota/2018/04/14/beach-lovers-push-back-on-new-property-rights-law/12700574007/. ↑
  79. Eagle, supra note 4, at 225. ↑
  80. See Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 863–64 (1987) (quoting Joseph L. Sax, Takings, Private Property, and Public Rights, 81 Yale L.J. 149, 152 (1971)). ↑
  81. Bethany Berger, Property and the Right to Enter, 80 Wash. & Lee L. Rev. 71, 89–101 (2023), [hereinafter Berger], https://ssrn.com/abstract=4078255. ↑
  82. Id. at 95–96. ↑
  83. See V.I. Code Ann. tit. 12, § 401. ↑
  84. U.S. Const. amend. V; Cedar Point Nursery, 141 S. Ct. at 2066 (quotations omitted) (applied to the states through the 14th Amendment). ↑
  85. 26 Am. Jur. 2d Eminent Domain § 9; see Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 432 (1982). Per Se, Black’s Law Dictionary (11th ed. 2019). A “per se” or “categorical” taking means that when a litigant proves a key fact to establish the claim, then the court cannot consider other factors, because, as a matter of law, that key fact proves a taking occurred. ↑
  86. Id.; see Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 436 (1982). ↑
  87. 26 Am. Jur. 2d Eminent Domain § 9; Per Se, Black’s Law Dictionary (11th ed. 2019); See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978). ↑
  88. Cedar Point Nursery, 141 S. Ct. at 2071–72 (citing Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)). ↑
  89. See Penn Cent. Transp. Co., 438 U.S. 104. ↑
  90. Cedar Point Nursery, 141 S. Ct. at 2082 (Breyer, J., dissenting). ↑
  91. 75 Am. Jur. 2d Trespass § 3 (1991). ↑
  92. Id. ↑
  93. Cedar Point Nursery, 141 S. Ct. at 2078; See Loretto, 458 U.S. at 434–36. ↑
  94. 75 Am. Jur. 2d Trespass § 3 (1991). ↑
  95. See generally Loretto, 458 U.S. 419. ↑
  96. Id. at 421. ↑
  97. Id. at 423. ↑
  98. Id. at 424. ↑
  99. Id. at 421, 424. ↑
  100. Id. at 424–25. ↑
  101. Loretto, 458 U.S. at 426, 441. ↑
  102. Id. at 435–38. ↑
  103. Id. at 435. ↑
  104. Id. at 435–36. ↑
  105. See Nollan, 483 U.S. 825. ↑
  106. Id. at 827–28. ↑
  107. Id. at 847 (Brennan, J., dissenting). ↑
  108. Id. at 828–29 (majority opinion). ↑
  109. Id. at 854; see Cedar Point Nursery, 141 S. Ct. at 2086 (Breyer, S., dissenting). ↑
  110. Nollan, 483 U.S. 854–55. ↑
  111. Id. at 837. ↑
  112. See Nollan, 483 U.S. at 836. ↑
  113. Id. at 836–37. ↑
  114. Id. ↑
  115. Id. at 832. ↑
  116. Id. at 831–32. ↑
  117. Id. at 832. ↑
  118. See Cedar Point Nursery, 141 S. Ct. at 2074; Berger, supra note 80, at 1. ↑
  119. Cedar Point Nursery, 141 S. Ct. at 2069–70. ↑
  120. Id. ↑
  121. Id. at 2069. ↑
  122. Id. ↑
  123. Id. ↑
  124. Id. at 2070. ↑
  125. Id. ↑
  126. Id. ↑
  127. Id. ↑
  128. Id. at 2070–71. ↑
  129. Id. at 2075–76. ↑
  130. Id. at 2072. ↑
  131. Cedar Point Nursery, 141 S. Ct. at 2074 (citing Nollan, 483 U.S. at 863–64). ↑
  132. See id. ↑
  133. Cedar Point Nursery, 141 S. Ct. at 2066. ↑
  134. Loretto, 458 U.S. at 434–35. ↑
  135. Cedar Point Nursery, 141 S. Ct. at 2074. ↑
  136. Id. at 2072. ↑
  137. Id. at 2071. ↑
  138. Id. at 2075. ↑
  139. Id. at 2072 (citing Blackstone’s Commentaries as protecting right the right to exclude). ↑
  140. Id. at 2069, 2074. ↑
  141. Id. at 2072. ↑
  142. Id. at 2074–75. ↑
  143. Id. at 2075. ↑
  144. See Nollan v. Cal. Coastal Com, 483 U.S. 825, 850­–51 (1987) (Brennan, J., dissenting). ↑
  145. Cedar Point Nursery, 141 S. Ct. at 2074. ↑
  146. Id. at 2075. ↑
  147. Id. at 2074. ↑
  148. See id. at 2074 (citing Horne v. Department of Agriculture, 576 U. S. 350, 357 (2015); United States v. Causby, 328 U.S. 256, 259 (1946); Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 335 (2002)). ↑
  149. Loretto, 458 U.S. at 435–36. ↑
  150. Id. at 432–33 n.9. ↑
  151. Id. at 434. ↑
  152. Id. at 436. ↑
  153. Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2070 (2021). ↑
  154. See id. at 2074–75; Josh Blackman, supra note 1. ↑
  155. Id. ↑
  156. Id.; Josh Blackman, supra note 1. ↑
  157. See Nollan v. Cal. Coastal Com, 483 U.S. 825, 832 (1987). ↑
  158. Id. ↑
  159. Id. at 836. ↑
  160. Id. at 2076–77. ↑
  161. See Cedar Point Nursery, 141 S. Ct. at 2074–75. ↑
  162. See generally Buending v. Town of Redington Beach, 10 F.4th 1125, 1128–29 (11th Cir. 2011). ↑
  163. See Nollan, 483 U.S. at 828. ↑
  164. Id. at 853. ↑
  165. See Cedar Point Nursery, 141 S. Ct. at 2087 (Breyer, J., dissenting). ↑
  166. See Nollan, 483 U.S. at 863–64 (joining Justice Breyer’s dissent). ↑
  167. Id. ↑
  168. See Cedar Point Nursery, 141 S. Ct. at 2078–79. ↑
  169. See generally Hadacheck v. Sebastian, 239 U.S. 394 (1915). ↑
  170. Id. at 405. ↑
  171. Id. ↑
  172. Id. at 407. ↑
  173. See id. at 410–11. ↑
  174. Id. (finding that to hold otherwise would “preclude development and fix a city forever in its primitive conditions”). ↑
  175. Id. at 411. ↑
  176. Id. at 410­­–11. ↑
  177. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1022–23 (1992). ↑
  178. Id. ↑
  179. Id. at 1023–24. ↑
  180. Id. at 1024. ↑
  181. See id. (quoting Nollan, 483 U.S. 825, 834 (1987)). ↑
  182. Lucas, 505 U.S. at 1026. ↑
  183. See id. ↑
  184. Id. at 1007–09. ↑
  185. See Brendan Mackesey, The Dawn of a Judicial Takings Doctrine: Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 75 U. Miami L. Rev. 798, 806–07 (2021) [hereinafter Mackesey]. ↑
  186. Id. ↑
  187. See Lucas, 505 U.S. at 1029. ↑
  188. Id. at 1024. ↑
  189. Id. ↑
  190. Id. at 1026. ↑
  191. Id. at 1028–29 ↑
  192. Nuisance, Black’s Law Dictionary (11th ed. 2019). ↑
  193. See Lucas, 505 U.S. at 1029–30. ↑
  194. Id. ↑
  195. Id. ↑
  196. See id. ↑
  197. Id. ↑
  198. Id. at 1028–29 (alluding to concurrence’s broader the background principles of property law exception to a taking). ↑
  199. See generally Lucas, 505 U.S. at 1032 (Kennedy, J., concurring). ↑
  200. Id. at 1035. ↑
  201. Id. ↑
  202. Id. ↑
  203. Daniel Farber, Requiem for a Heavyweight: the Decline and Fall of Lucas v. South Carolina Coastal Council, 71 Fla. L. Rev. Forum 212, 214 (2020) [hereinafter Farber]. ↑
  204. See Mackesey, supra note 184, at 806. ↑
  205. See Farber, supra note 202, at 216. ↑
  206. Michael C. Blumm & Lucus Ritchie, Lucas’s Unlikely Legacy: The Rise of Background Principles As Categorical Takings Defenses, 29 Harv. Env’t. L. Rev. 321, 326 (2005) [hereinafter Lucas’s Unlikely Legacy]. ↑
  207. Nemo dat quod non habet, Oxford Reference, https://www.oxfordreference.com/ view/10.1093/oi/authority.20110803100228794 (last visited May 2021). ↑
  208. See Cedar Point Nursery v. Hassid, 141 S.Ct. 2063, 2078–79 (2021). ↑
  209. See id. ↑
  210. See id. at 2079. ↑
  211. Id. (quoting Restatement (Second) of Torts §§ 196, 197 (1964). Necessity generally serves as a defense to trespass.) ↑
  212. Cedar Point Nursery, 141 S.Ct. 2063, 2079 (2021). ↑
  213. Id. ↑
  214. Id. ↑
  215. Id. ↑
  216. Id. ↑
  217. Id. ↑
  218. Olivia Johnson, Let the Exceptions Do the Work: How Florida Should Approach Environmental Regulation After Cedar Point Nursery v. Hassid, 77 U. Miami L. Rev. 258, 279 (2022). ↑
  219. See Cedar Point Nursery, 141 S. Ct. at 2079–80. ↑
  220. Id. ↑
  221. Id. ↑
  222. Id. at 2080. ↑
  223. Id. at 2079. ↑
  224. See Eagle, supra note 4, at 262–63. ↑
  225. Id. ↑
  226. See Bederman, supra note 11, at 1382; Cedar Point Nursery, 141 S. Ct. at 2063, 2080 (2021). ↑
  227. Cedar Point Nursery, 141 S. Ct. at 2089. ↑
  228. Bederman, supra note 11, at 1382. ↑
  229. V.I. Code Ann. tit. 12, § 401. ↑
  230. Lucas’s Unlikely Legacy, supra note 205, at 326. ↑
  231. See generally City of Daytona Beach v. Tona-Rama, 294 So. 2d 73, 78 (1974). ↑
  232. See Lucas’s Unlikely Legacy, supra note 205, at 326. ↑
  233. See Eagle, supra note 4, at 262. ↑
  234. Id. ↑
  235. Id. at 263–64 (footnote 258). ↑
  236. Id. at 262. ↑
  237. Id. at 263. ↑
  238. Nemo dat quod non habet, Oxford Reference, https://www.oxfordreference. com/view/10.1093/oi/authority.20110803100228794 (last visited May 2021). ↑
  239. See generally Thornton, 462 P.2d 673. ↑
  240. Courtney B. Johnson & Steven R. Schell, Adapting to Climate Change on the Oregon Coast: Lines in the Sand and Rolling Easements, 28 J. Env’t L. & Litig. 447, 462 (2013) [hereinafter Johnson]. ↑
  241. Or. Rev. Stat. § 390.610(2). ↑
  242. See Johnson, supra note 239, at 468. ↑
  243. Thornton, 462 P.2d at 672. ↑
  244. Id. at 673. ↑
  245. Id. at 676–77. ↑
  246. Id. at 674–75. ↑
  247. Thornton, 462 P.2d at 674–75. ↑
  248. Id. at 588. ↑
  249. Id. at 598. ↑
  250. Id. at 588. ↑
  251. Id. ↑
  252. Id. at 598. ↑
  253. Stevens v. City of Cannon Beach, 854 P.2d 449, 449–53 (1993). ↑
  254. Id. at 452. ↑
  255. Id. at 451–53. ↑
  256. Id. ↑
  257. Id. at 456. ↑
  258. Id. ↑
  259. Id. at 453. ↑
  260. Thornton, 462 P.2d at 677–78. ↑
  261. Id. ↑
  262. Now, recreation on the dry sand drives commerce, a foundation for the protection of public trust lands, through eco-tourism. ↑
  263. Thornton, 462 P.2d at 673. ↑
  264. See Eagle, supra note 4, at 246–47. A trust-appurtenant easement resembles an easement by necessity which does not require proof of historical use. The New Jersey case, Mathews v. Bay Head Improvement Ass’n, 471 A.2d 355 (N.J. 1984), established the trust-appurtenant easement because the public needed to use the dry sand beach to use and enjoy the wet sand, the public trust lands. ↑
  265. Id. ↑
  266. See id. at 261–62. ↑
  267. See id. ↑
  268. See id. at 262. ↑
  269. Stevens, 854 P.2d at 456. ↑
  270. Id. ↑
  271. See id.; Lucas’s Unlikely Legacy, supra note 205, at 326. ↑
  272. Id. ↑
  273. See Lucas, 505 U.S. at 1029. ↑
  274. See Tex. Nat. Res. Code Ann. § 61.011. ↑
  275. Restatement (Second) of Torts § 821B (Am. L. Inst. 1979). ↑
  276. Cedar Point Nursery, 141 S. Ct. at 2079. ↑
  277. Thornton, 462 P.2d at 673. ↑
  278. See Hadacheck, 239 U.S. at 411; Lucas, 505 U.S. at 1027; Cedar Point Nursery, 141 S. Ct. at 2079. ↑
  279. Restatement (Second) of Torts § 821B. ↑
  280. ​​Tona-Rama, 294 So. 2d at 78. ↑
  281. Id. at 74. ↑
  282. Id. at 74–75. ↑
  283. Id. at 76–77. ↑
  284. Id. at 78. ↑
  285. Id. ↑
  286. Id. ↑
  287. Id. ↑
  288. See Lucas, 505 U.S. at 1029. ↑
  289. Tona-Rama, 294 So. 2d at 75 (quoting White v. Hughes, 190 So. 466, 448–50 (Fla. 1939)). ↑