Types of Law Involved in Coastal Management

1. Types of Law Involved in Coastal Management • Administrative Law • Environmental Law • Property Law • Land Use Regulation • Water Law • Natural Resources Law • Constitutional Law • Federal/State Statutes • International Law Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.1

2. Lands Under Navigable Waters • Lands subject to the ebb flow of the tides • The King exercises ownership and dominion • King protects public uses of navigation, commerce, fishing Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.2

3. Public-Private Boundary in Coastal Lands Determined by State Law • mean high tide line or • mean low tide or • first line of stable vegetation Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.3

4. Ambulatory Boundaries • Shorelines are rarely stable. • Legal and physical boundary is ambulatory. • The property line is a rolling public easement. • Coastal land owners may gain or lose as boundaries change. Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.4

5. Coastal Processes that Can Change Property Boundaries • Accretion: when upland is created, the property boundary moves seaward • Erosion: When land is worn away by water, the property boundary moves landward • Avulsion: A sudden change in the shoreline by action of the water does not change the original boundary • Subsidence: There is a limited right of reclamation of subsided land • Global warming: Sea level rise may have ramifications for ownership Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.5

6. Public Trust Doctrine The Public Trust Doctrine applies to: • shorelands • bottomlands • tidelands • tidewaters • navigable freshwaters • plant and animal life living in these waters Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.6

7. Public Trust Resources • Owned by the public • Held in trust by the State for the benefit of the public Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.7

8. Extent of the Public Trust Doctrine in the U.S. • 191,000 square miles of navigable waters: • 79,481 square miles of inland navigable waters • 74,364 square miles of coastal waters • 37,500 miles of ocean waters • 98,664 miles of trust shoreland: • 88,633 miles of tideland • 10,031 miles of Great Lakes shoreline Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.8

9. fishing commerce travel swimming hunting recreational fishing boating public access Rights Protected under the Public Trust Doctrine Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.9

10. Types of Law Involved in Coastal Management • Atlantic, Pacific and Gulf states define coastal boundaries by vertical datums: • planes of reference for elevations based on the average rise and fall of the tide • Great Lakes states determine the ordinary high water mark by means of vegetation Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.10

11. Public Trust Lands: Vested with Two Titles • jus publicum – the collective rights of the public to use and enjoy trust lands and waters • jus privatum – the private proprietary rights in the use and possession of trust lands • The State retains and holds in trust the public’s jus publicum interest regardless of ownership Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.11

12. Coastal Resource Management Issues That Can be Addressed by the Public Trust Doctrine • public access to coastal areas • oil and gas production • environmental quality • erosion control Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.12

13. Use of the Public Trust Doctrine in State Coastal Management Programs • Explicit incorporation of public trust principles into state programs • Special area designations to protect public trust lands/resources • Limit/prohibit development in protected zones • Classify public trust lands/waters in different use categories • Creation of management authorities for public trust areas • Set priorities for public trust uses Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.13

14. U.S. Constitution: 5th Amendment No person shall be … deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation. Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.14

15. Pennsylvania Coal v. Mahon (1922) The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking. Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.15

16. Takings Cases: First English First English Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987) Just compensation is due for the period of time that a regulation was in effect if that regulation is found to be a taking. Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.16

17. Takings Cases: Nollan Nollan v. California Coastal Commission (1987) There must be a rational nexus between a condition imposed by the government on a private landowner and a valid public purpose. Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.17

18. Takings Cases: Dolan Dolan v. City of Tigard (1994) There must be a rough proportionality between a dedication of land required by the government and the impact of the proposed development. Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.18

19. Takings Cases: Lucas Lucas v. South Carolina Coastal Commission (1992) A regulation that deprives a landowner of all economically beneficial or productive use of the land is a taking. Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.19

20. Wild Dunes Resort Source: William A. Fischel. Lucas v. South Carolina Coastal Council: A Photographic Essay. Dartmouth College Dept. of Economics 1995 Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.20

21. Lucas Lots, I View of Lucas's two lots, on either side of large square house in the center, from the edge of the ocean (looking towards northwest). Note that Lucas's lots are the only vacant lots in sight along the beach. Source: William A. Fischel. Lucas v. South Carolina Coastal Council: A Photographic Essay. Dartmouth College Dept. of Economics 1995 Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.21

22. Lucas Lots, II Closer View of dunes and both of Lucas's lots from the beach, looking towards northeast. As before, square house is between Lucas's lots. Source: William A. Fischel. Lucas v. South Carolina Coastal Council: A Photographic Essay. Dartmouth College Dept. of Economics 1995 Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.22

23. Lucas Lots, III Looking toward ocean (southwest) across one of Lucas's vacant lots (#13 Beachwood East). The small sign says "Beach Access Path," indicating the public path to the beach. Source: William A. Fischel. Lucas v. South Carolina Coastal Council: A Photographic Essay. Dartmouth College Dept. of Economics 1995 Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.23

24. Lucas Lots, Revisited I The cube-shaped house, as before, is between Lucas's original two lots. (Lucas did not own the cube-shaped house or its lot.) On the left is a new house (salmon-pink color) built since 1994. The lot on the right remains vacant Source: William A. Fischel. Lucas v. South Carolina Coastal Council: A Photographic Essay. Dartmouth College Dept. of Economics 1995 Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.24

25. Lucas Lots, Revisited II A closer view of the new, salmon-pink house. The house is about 5,000 square feet. Source: William A. Fischel. Lucas v. South Carolina Coastal Council: A Photographic Essay. Dartmouth College Dept. of Economics 1995 Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.25

26. A Summary of Takings Cases Rules • The physical occupation of private land by a unit of government, except under extreme circumstances, is a taking. • A regulation that “goes too far” is a taking (Pennsylvania Coal). • Even a “temporary” loss of use of private property will constitute a taking requiring compensation for the period during which use of the property was denied (First English). Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.26

27. A Summary of Takings Cases Rules (continued) • If the regulation exacts a property right as a condition for a permit with no rational connection to a valid public purpose then the regulation goes “too far” and is a taking (Nollan). • A total deprivation of economic use will amount to a taking for which damages may be awarded (Lucas). Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 27.27