This Land Was Your Land

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This Land Was Your Land

Coastal Erosion Now Makes it “Ours”

Is it a lawyer’s delight, a legislator’s nightmare or a national problem that will be left to insurance companies and local ordinances? As seas rise, as increasing private lands cascade into the ocean and either disappear or become new “beaches,” who actually owns that reconfigured property? Currently, the definition of coastal ownership is set by state law, but what may be obvious to many is that the best coastal properties are often owned by the richest of rich in the nation. Whether they sit with the castle-like homes in Newport, Rhode Island or the exclusive estates in Malibu or Laguna Nigel in California, these mega-million-dollar residences exist because of their coastal presence. And there is little question but that the ocean is knocking at their door, demanding permanent concessions, some that threaten the best of the best.

Acutely aware of the very definition of California, the visual signature if you will, resides heavily with her beaches and coastal vistas. When the California Coastal Act of 1976 was passed, climate change was barely a concern. The law was passed to enable general public access to what was now dubbed a shared public resource, pitting rich coastal enclaves that restricted public access, necessarily through their property, against a population that was increasingly demanding the ability to get to those “public beaches.” The California Coastal Commission was created, giving real estate lawyers an amazing new source of revenue. To this day, wealthy property owners in Santa Barbara County and self-help Orange County surfing cliques continue to oppose such public access to the delight of specialized lawyers.

But as if these issues were at the core of coastal ownership and access, climate change is recapturing land every day… even challenging the coastal rail route through southern Orange County. Rosanna Xia, writing for the May 30th Los Angeles Times, wondered where ownership and climate change combined to deal with coastal erosion: “The Coastal Act is a remarkable commitment to the public trust doctrine, which traces back to the Byzantine Empire and Justinian I, who declared in 533 AD that ‘the following things are natural law common to all: the air, running water, the sea, and consequently the seashore.’… This notion — that certain lands should be held in trust by the government for the benefit of all people — evolved into English common law, which the United States then adopted and California later wrote into its state Constitution.

“Which brings us to where we are today: Along the California coast, the public trust is delineated by the mean high-tide line. The state, and therefore the public, has rights to most land covered and uncovered by the tide (i.e., the beach), as well as lands that were historically below the tide line but have since been artificially drained or filled (i.e., wetlands).

“These lines in the sand were all fine and good when we still had ample sand to go around. But sea level rise has made things a lot more complicated: What happens when the tide line starts to move inland because of climate change? At what point does private property become public property — and how do we draw that line?

“Squeezed out, too, between rising seas on one side and human infrastructure on the other, are the vanishing salt marshes that once nurtured many of the world’s most endangered species. Studies have found that two-thirds of our beaches in Southern California could drown in the coming decades. So when all that we hold dear cannot be saved, what becomes the priority?...

“The first thing is acknowledging the moving nature of the tide, and we haven’t always done that in the past — oftentimes you have private property lines that assume that the public land will always be in the same place.

“And so going forward, perhaps it’s putting conditions into permits or local coastal plans that acknowledge the fact that this boundary actually moves back and forth, and that it is actually moving inland with sea level rise. ... We could potentially limit these conflicts by requiring something to happen once the public trust moves into a private space.

“But in situations where we don’t have that option, what other tools are available that would allow us to be a little more proactive? We need to think through that more. Part of what we struggle with as an agency is when we’re reactive, not proactive.

“This is making me wonder, how does this moving boundary challenge our modern notions of property ownership?... That goes to the heart of this American vision of owning property, putting your stake down and passing it down for generations. This conflict is very Western. … The people who lived here before us did not have that struggle, and I think if we go back and learn some of the lessons that tribal people have been trying to teach us, we might have a better approach to these things.

“It’s not in the settler mind-set to think about land changing in this way, and our private property laws reflect that mind-set. So how do we work within that framework or test that framework? The stark reality is that California is losing its beaches. And if we lose the ability to connect with the ocean, we lose so much of what California is about.” When these property lines were set, no one bothered to clear the notion of “ownership” with mother nature. Who pays for the losses? It’s one burden when Innuits who have lived on the Alaska coastlines for centuries and quite another for rich homeowners cherishing a beachy existence, perhaps with their own docks for their ostentatious yachts.

There are sections of coastal land, particularly in California and Florida, where flood insurance is either exorbitant or non-existent, where even a 15-year-mortgage for a new coastal purchase is vaporizing fast. The problem is accelerating. Should insurance companies and governmental disaster relief agencies even reimburse to rebuild where ultimate total loss is probable? Is this a state-by-state issue or one that only the federal government has the resources and political power to resolve? Congressional gridlock probably answers that question.

I’m Peter Dekom, and in terms of coastal erosion, you know you ain’t seen nuffin’ yet!!!