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POL 663: Ocean Policy and Law

Lecture 2: The Coast Public and Private Rights in the Coastal Zone Introduction
We all understand some notion of rights. Indeed, we live in a society where we claim rights all the time. The right to free speech, some form of education, the right to privacy; we are a nation of people who believe in fundamental rights that accrue to the individual. This belief is enshrined in our federal constitution. In fact, the fundamental individual rights we often identify with are mainly contained in the first ten amendments of our U.S. Constitution, often referred to as the Bill of Rights. In this section we will be discussing the kinds of rights one has in the coastal zone, for example rights of ownership, rights of access, etc. The question of rights can be categorically divided between private and public rights, so one may have certain rights depending on whether they are approaching the coastal zone as a private owner of coastal property or as a public citizen with interests in coastal waters. However, in order to place these rights into perspective, we first need to review two important concepts: the first is the legal relationship between different kinds of laws (something I call the hierarchy of laws), and the second is the conceptual differentiation of property rights based on the characteristics of excludability and divisibility. With these two concepts understood, we are better prepared to understand the relative public and private rights in the coastal zone.

Hierarchy of Laws and Property Right Characteristics

Consider the following visual representation of the hierarchy of laws in U.S. law:

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Some of you who have taken other law related courses in this program might have already been exposed to this principle. In short, the hierarchy of laws represents the difference between three major categories of law created under the U.S. system of government: the constitution, laws (statutes), and regulations. The hierarchy is meant to help us understand the difference between each category from a supremacy standpoint, meaning the relative relationship between the categories of law when a conflict arises. In sum, constitutional law is the supreme law of the land and thus trumps all other categories of law where there is a direct conflict. Thus, for example, a fundamental right established under the Constitutions Bill of Rights cannot be removed by a statute (law) passed by Congress; if a federal law conflicts with a fundamental constitutional right, then that law is considered unconstitutional. The same is true of regulations; if a regulation conflicts with either a statute or the Constitution, then that regulation is invalid. By understanding this relationship between different categories of law, one is able to assess the relative rights of different parties from a policy standpoint. For example, one should know that a policy proposal (whether legitimated through agency action via creating regulations, or through legislative enactment via law creation) that conflicts with a constitutional right is invalid, even if that proposal is adopted by the government entity. Thus, policy proposals likely to be found constitutionally invalid are suboptimal candidates for policy adoption, even if the proposal does an excellent job of achieving intended goals.1 Now consider the following visual representation of different categories of property rights based on the characteristics of excludability and divisibility:

This is a basic example of the importance of legal frameworks in helping to understand the relative merits of policy proposals.

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This categorization (also discussed in environmental policy and law courses) helps us understand the major differences between kinds of property rights. This fundamental understanding is the starting point from which rights, whether private or public, are understood in relation to policymaking considerations and the legal frameworks that impact those considerations. At points in this course we will be viewing the difference between private and public rights in resources through the distinguishing characteristics of public and private goods as described in the figure above.2 Public goods tend to have the characteristics of low divisibility and low excludability; this means the rights inherent in public goods are the kinds that cannot readily be divided or withheld. Gravity is one example that has these characteristics inherently; no matter how much gravity I use, I cannot diminish your ability to access and use gravity. Gravity has the inherent properties of being nonexclusive and non-divisible. While gravity is an example of an inherent public goods quality, government can create rules that make certain resources have these same public good qualities. For example, government can maintain ownership over submerged lands (the oceans and other water bodies of the United States). This public ownership can create incentives for access, for example allowing for the public to have the use of the ocean resources, say for things like fishing, boating, swimming, and other recreational activities. Even though the land is capable of being divided and excluded from certain access (unlike gravity), government

We will also be discussing common pool resources property rights with high divisibility and low excludability in greater detail when we move into international waters jurisdiction (the high seas) in our examination of the United Nations Convention on Law of the Sea (UNCLOS).

Page 4 of 10 may choose to adopt the characteristics of a public good as a policy choice to allow for the public access to this resource. In this case, government is making rules that create public good qualities, rather than the resource having those qualities inherently. Private goods have the opposite qualities of public goods as observed in the figure above. Private goods are highly excludable and divisible, meaning they have the qualities of division and exclusivity; one can easily define the geographic extent of the private space (1 acre of land for example), and generally through force of law, that same person has the ability to exclude others from the space. When we are referring to public and private rights in the coastal zone in this section, we are utilizing this conceptual framework to distinguish between these kinds of rights. So, for example, we may identify coastal land that abuts the ocean where both public and private rights in a defined geographic area exist. Many times these rights come into conflict with one another; for example, the right of the public to access the coastline (the area immediately adjacent to the water) may be impacted by private property rights that overlap the same coastline area. Our purpose in this section is to understand the particular public and private rights that exist in coastal areas, and also how legal frameworks impact policy options to resolve competing interests between public and private rights when they come into direct conflict. From this starting point we are better able to devise policy strategies that address the multiple interests often at-stake, including the government actions that can impact these rights (by either removing public rights in favor of private rights, or attempting to extend public rights into areas of traditionally private rights).

What is the Coastal Zone?

We all have some notion (generally) of what we might include in our personal definition of the coastal zone, but even though we might identify similarities amongst our personal definitions, there would likely also be some amount of variation. Many identify it as the area where the ocean meets the land. Scientifically, this may be mostly accurate, especially if we are talking about areas that are influenced by the tides. Others may take a non-scientific route to defining the term, using geopolitical criteria. Borrowing from part of our visual image in the preceding lecture, consider the following representation of a coastal zone:

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The coastal zone as described above can include elements of the following (moving from upland to the ocean): The upland area, usually defined as dry land that exists beyond a line of vegetation. A vegetation line demarking the upper extent of physical characteristics associated with many coastal zones. The dry sand area of a coastal beach that extends from the average high tide line to an area of vegetation. This portion of the beach may include dunes. The wet sand area that incorporates the intertidal zone, or the area of land that is between the average high and low tide lines. This area if often inundated with water during high tide cycles and then exposed during low tide cycles. Depending on the area, it can cycle between inundation and exposure from once to multiple times in a day. The ocean area, which is demarcated starting at the average low tide line and then moving seaward.

Generally definitions of the coastal zone (legal or scientific) do not extend significantly beyond the limits described above in the figure as the potential coastal zone. However, in some cases, such as Hawaii, the entire landmass of the island is designated as coastal

Page 6 of 10 zone for certain purposes (for example under Hawaiis coastal management planning within the Federal Coastal Zone Management Act). In this course, it is important to distinguish scientific definitions from legal or policy definitions. When we consider the term coastal zone from a legal or policy standpoint, we may mean something drastically different than you might imagine. Certainly, the legal and policy definitions of a coastal zone vary, sometimes significantly, from an accepted scientific definition. Without getting into a debate of definitions, we can look at certain characteristics of coastal zones and relate those characteristics to different rights that exist in the coastal zone in general. Generally speaking, we can say the following regarding rights and their associated relationship to different coastal zone characteristics: First, there are both public and private rights in coastal zones. Generally speaking, the areas above the mean high tide line are considered private land.3 Thus, most beach areas that exists above high tide are privately owned, much like any other piece of real property would be owned. However, within this private ownership there may be other important issues to consider. For example, do public access rights exist in private property adjacent to the ocean? Without access to public ocean resources, the publics right to use the water is seriously diminished. Thus, there may be instances where government seeks to ensure public access to the shoreline, even if that access impedes upon private landowner rights. The degree to which government can force public access over private land is constrained by constitutional law principles, particularly the 5th Amendment of the U.S. Constitution. We will discuss this in greater detail later in the course. The area below the mean high tide line is generally considered public land. Each state is allowed to determine the landward extent of their coastal zone (this will be described in more detail later). Massachusetts, for example, extends its coastal zone from the water until 100 feet beyond the first major land transportation route encountered (road, rail, etc.). Thus, the coastal zone in Massachusetts extends pretty far inland, at least from a legal standpoint!4

In some cases, like Massachusetts, private ownership rights extend to the mean low water mark (low tide) giving private landowners ownership rights to the intertidal zone.

Cape Cod and the islands of Nantucket and Marthas Vineyard are considered to be entirely within the coastal zone, no matter how far inland one travels.

Page 7 of 10 The seaward extent of the potential coastal zone in most states ends about 3 miles from the mean high water mark (actually referred to as baseline, something we will discuss in greater detail later). This is not because there is a scientific reason for this demarcation, but rather because the jurisdictional limit of most coastal states is 3 miles by federal law under the Submerged Lands Act.

So, now that we have some indication of what encompasses the coastal zone, we must now look at the rights of individuals (public and private) within the coastal zone.

Various Rights Within the Coastal Zone

Both private and public citizens have rights within the coastal zone. Private citizens are simply those people who own real property that is located adjacent (or within) the coastal zone depending on the definition. Public citizens are generally everyone else. (As an example, a private citizen attempting to access the coastal zone in an area that is away from their property is considered a public citizen for analysis purposes). First and foremost, coastal lands (however they are defined in a particular state) are subject to the Public Trust Doctrine. As such, coastal lands cannot be used in a manner that interferes with the basic public trust rights of the citizens. While these rights vary from state-to-state (we will see this), the three basic rights are: fishing, fowling (bird hunting), and navigation (we will return to this concept in more detail later). The Public Trust Doctrine forms the foundation of the public interest in land. From a legal standpoint, there are two separate property interests in coastal lands: (1) the jus publicum (the public interest); and (2) the jus privitum (the private interest). While the private interest can be separated, the public interest cannot. As an example, a State may sell coastal land to a private individual. However, in making this sale, the State can only transfer the jus privitum (private interests). It cannot sell the jus publicum (public interests), because such a sale is forbidden under the Public Trust Doctrine. So, why would someone want to purchase a property adjacent to the ocean (or a lake or river) if these areas are subject to public rights of use? Well, of course there is the view! Secondarily, these private owners enjoy special rights when it comes to water access. In the text, you read about the rights of riparian or littoral landowners. These terms refer to the special rights of ownership for those private owners who own property adjacent to the water (fresh water = riparian, salt water = littoral). (Lawyers and policy folks like to use special words to make themselves sound educated and important! So do scientists!) These special rights are as follows: A right to the natural flow of the water (right to have the water flow in an unobstructed state). This becomes important if you think of a landowner who has a dock for a large boat. If the adjacent landowner obstructs the flow of water, sand may accumulate, and the waters depth may decrease leaving the landowner unable to dock their boat!

Page 8 of 10 A right of access. This includes: o Rights to additions (termed accretions). Without this right, the natural movement of sand accumulating may create a barrier between the landowners original property and the water (i.e., they may no longer be adjacent to the water. o A right to purchase adjacent submerged land (if the coastal state was to sell its right jus privitum in the submerged land). o A right to maintain contact with the water. This is linked to the right to additions mentioned above. If they are waterfront owners, they want to remain waterfront owners! o A right to fill (if allowed by state and federal law). A right to wharf out. I have always liked this term. Sounds like someone has a right to go crazy! It really means the right to create a dock or pier (depending on your use of the term). Finally, a right to use of the water for commerce.

It is important to note all of these rights are contingent upon other things. For instance, the right to wharf out is contingent upon the federal and state governments rights to maintain navigation routes. The important lesson to remember is nothing is absolute in the law. When we discuss rights within the coastal zone, we are talking in generalities, and there are substantial variations depending upon which state you are operating in, and the particular conditions encountered.

Boundaries of Rights
As we move through the material, you will see all kinds of limitations placed on the rights mentioned above. Most of these limitations come from the public sector (federal and state governments). Those who regularly work in the marine field will recognize these sources of limitations. To maintain our sanity, we will stick with understanding the big picture, and then work our way into some of the details. A quick historical note: As mentioned in the text and earlier in the introductory materials, we have inherited our coastal zone rules from the common law tradition in England. England, in turn, inherited its rules regarding the coastal zone from the Roman Empire. When I spoke earlier of the jus privitum and jus publicum, I was speaking of this tradition. The Public Trust Doctrine was really a way of dealing with the private and public interests in coastal land. When this tradition was inherited by England, the King or Queen (sovereign) was the owner of these lands. S/he could divest (give away) the private interests in these lands, but they could not deprive the public of using the lands for basic needs (fishing, etc.). When our colonies were founded, these rights were ceded

Page 9 of 10 to the colonies, and this tradition continued throughout U.S. history. After WWII the federal government attempted to gain control of coastal waters. However, this attempt was stopped by Congress (which is made up of representatives from each of the states) when it passed the Submerged Lands Act (SLA). After passage of the SLA, each state was the owner of coastal lands, and could dispose of them as they wished, with the limitations set forth under the Public Trust Doctrine. In the 1970s, the federal government created an incentive plan for states to develop uniform coastal management plans. This incentive plan became law in what is known as the Coastal Zone Management Act, or CZMA for short. Many who work in coastal areas are acutely aware of the CZMA. We will be discussing this management plan in future readings. The point of this historical note is to provide additional background on the development of coastal law and policy. Today, each state defines its relative boundaries when it comes to the coastal zone (we know this from what is stated above), but those boundary rights are less clear between federal and state when it comes to regulating the coastal zone. We will see the interactions of law and policy through this filter of federal and state regulation. While the text has introduced you to this concept, we will wait a bit to discuss this subject in more detail.

Applications of These Rights

With some understanding of rights in-hand, we can now think about the application of rights to particular policy issues. For example, what about access rights to coastal resources? In order to answer this question, we must know something about the property characteristics of the resource in question: does the resources have public good characteristics, or does it contain private good characteristics? If the resource itself is public in nature, then maybe there is a right of access that is also public in nature. For example, fishing was mentioned earlier as one of the activities that is traditionally protected under the public trust doctrine; so the act of fishing itself seems to be a kind of resource (or activity) that is a protected public right. Even if the activity of fishing can be considered public, the fish that are the purpose of the activity cannot as easily be considered public resources, at least not in all instances. When they are in the water amongst other fish they may naturally be considered to be public resources (because they exist in the submerged lands owned by the state or federal government depending on where exactly they are located at a given moment in time). However, when they are captured they are no longer part of the public zone, but rather become the private property of the person who has captured the fish (under the legal doctrine of capture). This makes some sense if we go back to our property rights characteristics chart above. Fish are both divisible (we can separate one from another) and excludable (once taken, Fish A is no longer available for capture by someone else). But even if fish are capable of being transmuted from a public to private resource when captured there are conditions on this, at least legal conditions. For example, one might be required to obtain a permit from the local government in order to legally capture the fish. Or, the particular fish captured may be endangered and thus not capable of private

Page 10 of 10 ownership by operation of law. There are a lot of different conditions that can be placed on the fish that alters its property right characteristics. Like gravity, some of the fishes property right characteristics are intrinsic to the fish itself, while other are external to the fish, created and enforced by legal creation. As we think about public and private rights in the coastal zone, we must be able to conceptualize these different characteristics under different circumstances. The circumstances described above that changed the property right status of the fish were due primarily to legal frameworks. As noted earlier, one of our goals in this course is to really begin to think about the role the law plays in advancing (or inhibiting) policy directions. We take up this topic next by focusing on public access to the shoreline, looking at different legal frameworks that impact this important right. END OF SECTION.