Florida case highlights erosion of property rights — VOICES for REASON

The Supreme Court is wrestling with a case involving a state-funded program of beach sand replenishment that’s threatening the property rights of private beach owners. But the conflict that gave rise to this case should never have arisen at all.

The lawsuit was brought by owners of beachfront property in Florida whose deeds include the beaches themselves. (That’s not always the case—in some states, private ownership of beaches is forbidden by state governments that declare them all public property.) Like many states, Florida has a program of beach replenishment to compensate for erosion from hurricanes and natural wave action. These programs pay for powerful dredging machines to pump new sand onto the beach at public expense.

The plaintiffs in the case (called Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection) object to the program because the new strips of sand become public property—raising the specter of sunbathers and surfers parading between the plaintiffs’ private houses and the ocean’s waves. The landowners say that’s a “taking” of private property by eminent domain, requiring a money payment to compensate for the diminished value of a beach subject to public access.

Notice how the beach replenishment program creates an insoluble conflict between property owners and taxpayers. The property rights of beach house owners—who presumably paid a premium for their own private stretch of beach—are violated when a public beach can be grafted by government fiat onto the shorelines of their property. But the property rights of all Florida’s citizens are violated when their money is taken to pay for beach replenishment, which is no part of a government’s proper functions. 

“You may take it as a general rule,” said Ayn Rand in another context, that “whenever an issue leads to an unresolvable conflict, you will find, at its root, the violation of someone’s rights.” This case is no different. The replenishment program creates conflicts between landowners and their government that would not occur under a proper legal system.

Erosion is a hazard everywhere. In the Midwest, far from any sandy beach, the wind can blow valuable topsoil from farmland. But that’s no justification for a government program to spread new soil. Instead, the farmer must address the problem at private expense, as by planting grass to keep the topsoil in place. Or suppose a sinkhole appears on a residential lot. That doesn’t create a claim on the state treasury to pay for dump trucks to deliver fill dirt. It’s the owner’s responsibility to deal with the hole, at his own expense.

Why should beaches be different? In the absence of publicly funded maintenance, beach owners would have plenty of incentive to protect or replenish their own strips of sand. Beachfront property commands a higher price on the market because people value ready access to the ocean’s waves. An owner who ignores erosion will see his property’s value plummet (especially if the erosion threatens to undermine his house’s foundation). Moreover, a beach owner presumably places personal value on walking down to the shore, and he can’t do that if the beach is gone. Finally, the law can play a role under certain circumstances. Established legal doctrines prevent an owner of land from depriving adjacent land of physical support (as by excavating adjacent earth without providing buttresses). The same doctrine applies to erosion by neglect. So, a beach owner who lets his sand wash away could be facing a lawsuit from a neighbor whose own sand is now sloughing off into the ocean because it’s been exposed to more wave action.

If owners of beachfront property are to be made secure in their property rights, tax-funded beach replenishment programs must give way to an expectation of private maintenance for private benefit.

Image: Wikimedia Commons