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

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

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

Ambulatory Boundaries Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course 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. Slide 27.4

Coastal Processes that Can Change Property Boundaries Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course 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 Slide 27.5

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

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

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

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

Types of Law Involved in Coastal Management Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Atlantic, Pacific and Gulf states define coastal boundaries by vertical datums: o 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 Slide 27.10

Public Trust Lands: Vested with Two Titles Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Slide 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

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 Slide Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course

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 oLimit/prohibit development in protected zones oClassify public trust lands/waters in different use categories Creation of management authorities for public trust areas Set priorities for public trust uses Slide Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course

U.S. Constitution: 5 th Amendment Slide Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course 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.

Pennsylvania Coal v. Mahon (1922) Slide Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course 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.

Takings Cases: First English Slide Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course 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.

Takings Cases: Nollan Slide Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course 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.

Takings Cases: Dolan Slide Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course 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.

Takings Cases: Lucas Slide Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course 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.

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

Lucas Lots, I Slide Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course 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

Lucas Lots, II Slide Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course 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

Lucas Lots, III Slide Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course 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

Lucas Lots, Revisited I Slide Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course Source: William A. Fischel. Lucas v. South Carolina Coastal Council: A Photographic Essay. Dartmouth College Dept. of Economics 1995 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 The lot on the right remains vacant

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

A Summary of Takings Cases Rules 1) The physical occupation of private land by a unit of government, except under extreme circumstances, is a taking. 2) A regulation that “goes too far” is a taking (Pennsylvania Coal). 3) 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). Slide Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course

A Summary of Takings Cases Rules (continued) Slide Session Name: Coastal Hazards Management Framework II Coastal Hazards Management Course 4)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). 5)A total deprivation of economic use will amount to a taking for which damages may be awarded (Lucas).