Through The Sandglass

When the lawyers go to the beach

Avulsion. For a geologist, it’s the process whereby a river escapes its channel, but for a lawyer it’s a doctrine – and a highly contentious one.

On many occasions on this blog I have bemoaned the absurdities of coastal development – and re-development – in the face of the natural dynamics of the beach, the impact of storms and hurricanes on re-arranging the coastline, and the implications of rising sea levels. The ‘nourish or retreat?’ arguments continue, exacerbated by the devastation and aftermath of ‘Super-storm’ Sandy. There are widespread conflicts between developers and property-owners on the one side, and coastal scientists on the other – state and local governments in the US may take one side or the other, but more often than not ignore the science. The issues are clear also here in the UK, particularly in the wake of the recent appalling storms, but while wholesale removal of beaches revealed some interesting archaeology and geology, damage to coastal property and infrastructure was relatively limited. The arguments over nourishing, defending or retreating are contentious everywhere, but nowhere are more fraught and vehement – never mind expensive – than in the US.

I am not naive: these issues are complex, to say the least, and much is at stake in terms of the livelihood and finances of individuals, communities and businesses. It is clear too that laws dealing with these matters are also complex, but I had no idea what a hopeless quagmire has resulted from the lawyers going to the beach. The arena where the law meets geology and appropriates science for its own purposes would be amusing if it were not so absurd. I’m not quite sure how I got into this, but suffice it to say that I have spent several hours attempting to decipher the legalese of coastal property law. I have emerged only somewhat the wiser, but at least with a sense of the quagmire.

At the heart of the matter are boundaries, and along an ever-shape-shifting shoreline, these present problems. If the shoreline moves, do the property boundaries? Are they, in the delightful language of the lawyers, ambulatory? The answer to this question is further complicated by the fact that the laws vary from state to state – in some, the property boundary (beyond which the land, submerged or not, is owned by the state) is the mean high tide line and others the low tide mark (meaning that the public only have the right to walk in the water). And whether or not you are a ‘littoral owner’ with ‘littoral rights’ is also a vexing issue:

It is not necessarily true to assume that anyone owning “oceanfront” or “inlet front” property is a littoral owner with littoral rights. Whether someone is a littoral property owner depends upon whether the ocean or inlet forms at least one boundary of the property. In order to be a littoral owner, the oceanfront owner’s title must run to the mean high water mark.3 If the mean high water mark is not one of the legal boundaries it is not littoral property and there are no littoral rights associated with it, even if the land appears to front the ocean or inlet.

If the property is littoral, then the property owner has the legal right of immediate and direct access to the ocean.

And that legal right of ‘immediate and direct access to’ may also include ‘contact with’ the ocean. All of this runs straight into the controversies over public access and the definition of lands held in ‘public trust’ which is in turn governed by the laws of ‘public easement’. It is arguments around these laws that have led to endless lawsuits in which property owners fight for the right to keep the public off ‘their’ beach.

This is all very well if the beach would only stay where it is and has always been. But of course the beach never stays where it is, changing sedately with tides, waves and sand supply or violently with storms and hurricanes. Beach changes as a result of the sand supply being cut off can take place naturally, or, more often than not, by man-made interventions and disruptions to the natural coastal system.

This is where the lawyers become very interested in the rate of geological processes and develop a series of doctrines accordingly, including the doctrine of avulsion. Not only do they transfer a process of river behaviour to the beach, but, by declaring avulsion to be rapid and sudden, distinguish it explicitly from erosion. In the view of the Florida Supreme Court

 “Avulsion” is a sudden and perceptible loss or addition to land by the action of water. In contrast to the doctrines of erosion, reliction, and accretion, the doctrine of avulsion requires the boundary between public and private land to remain at the MHWL as it existed before the avulsive event. Because hurricanes can cause avulsion, with sudden and perceptible shoreline changes, the boundary between private and public property does not change with the changes in the shoreline caused by storms.

The quagmire is immediately apparent. If the rate at which shoreline change occurred is key to the legal outcome of a case, there is plenty of room for wrangling and nit-picking:

Sometimes, courts facing disputes over lost beaches resolve the question by finding that the allegedly avulsive event was erosive instead. Whether something is erosion or avulsion turns out to be a thorny factual issue. Where there is a question of whether a particular shift in shoreline is erosive or avulsive, there is a presumption of erosion, which is overcome if the loss occurred suddenly. The test used in Texas, for example, to distinguish erosion from avulsion is to call erosion any situation where “though the witnesses may see, from time to time, that progress has been made, they could not perceive it while the progress was going on.” In Texas, even storm-related losses have sometimes failed to overcome that presumption. More often, courts have declined to find whether a loss of shoreline was erosive or avulsive and have decided cases on other grounds.

To a geologist or coastal sedimentologist, this is laughable, but for the lawyers, property owners and governments it’s deadly serious, with huge amounts of money at stake. And then there’s the doctrine of accretion that recognises that beaches sometimes build up seaward and, if the property owner’s rights are ambulatory, then their property is extended. But what if the accretion takes place as a result of artificial beach nourishment in the wake of a storm-related avulsive (or erosional) event? Here, things become very tricky indeed – the high tide mark is moved, the property owner may lose their littoral rights to ocean contact and the undesirable public may suddenly gain access to the new beach in front of the mansion. I won’t even begin to summarise the endless and expensive lawsuits that have resulted in this way from beach nourishment. Beach nourishment may be debatable as a sustainable means of managing the coast, but its intention is clear: to protect the beach and property. Despite this, residents sue the nourishers – and, even worse, this then becomes a constitutional issue, for the Takings Clause of the Fifth Amendment of the U.S. Constitution provides that private property may not be taken for public use without just compensation. The private property may now be completely submerged, but…

You may, dear reader, not be able to take much more of this, and I’m not sure I can, but, believe it or not, I have only highlighted a few of the issues.  Continue, if you would like, with a case described by the New York Times that makes for interesting reading, as does a recent post-Sandy case (involving Governor Christie, always good value).

And I have just remembered how I got into this: Sand Rights. I had come across an article from years ago titled ‘Sand Called a Resource in Jeopardy’ which, hardly surprisingly, caught my eye. The principle has also been covered by the New York Times. Californian attorney, Katherine E. Stone, was attempting to revive a theory that “is rooted in English common law and legal notions that date to the Roman Empire.”

It holds that sand, like other natural resources, is a public good that should be common to all people. The theory, which has gained credence among engineers, environmentalists and marine scientists, maintains that those who benefit from disrupting sand cycles should be responsible for correcting the damage.

"The beach is the same as a sort of environmental commons," said Ralph Faust, legal counsel to the California Coastal Commission. "It belongs to everyone."

Although the so-called public trust doctrine has been employed in efforts to fight smog, protect drinking water supplies and save Mono Lake, so far courts have not applied it to sand. Attempts by the Legislature to protect sand also have failed, Stone said.

This enlightened view, promoted by the more creative wing of the legal profession, seems to have got absolutely nowhere in the intervening twenty-two years, but the lawyers continue to go to the beach with enthusiasm.

 

[For those who have the energy to pursue this further, I found useful, and have quoted from, the summaries for North Carolina, a paper titled ‘Where’s the beach? Coastal access in the age of rising tides’, and ‘Climate Change Adaptation and Coastal Property Rights: A Massachusetts Case Study’.] 

The next book

The Greek word for 'desert' is eremos, from which comes 'hermit,' and that is exactly what I have been for quite a while. The word is appropriate because I have been chained to the word processor and surrounded by piles of research materials working on a book on the desert – or, more accurately, ‘The Desert.’

It is now more than two years since I was approached, while still working in Indonesia, by an independent UK publisher for a book on deserts. I explained that I did not want to do another coffee-table book of glorious photographs of landscapes and strange critters (although they are, in moderation, inevitable), and, thankfully, that was not what they were interested in either. What intrigued me was the idea of ‘The Desert’ in our imagination and reality and the conflicts between the views of the outsiders (us and Western ‘civilization’ in general) and those of the the insiders, the people for whom our planet’s arid lands are home. As an environment that participates intimately and dramatically in the earth system, the desert’s geological and geomorphological processes create the stage and the backdrop against which ecosystems and cultures have evolved, and there is a fair amount of earth science in the book. But there is much more and, as I continued to think this through and research, the scale of the ‘much more’ threatened to become overwhelming. I knew that I had taken on a herculean – albeit fascinating – task, but as the ideas, the characters, and the topics began to explode, the challenge of creating a coherent narrative became exhausting. However, summoning extraordinary self-discipline, resigning myself to an eremitic existence for months, and setting a target of 2,000 words per day, meant that I have now completed and submitted the ‘manuscript’ (total word-count somewhat in excess of that originally envisioned). There’s a lot of editing work still to do (compiling the index looms ominously), but it is now my intention to re-engage with what I believe to be the real world, post more regularly and catch up with the geoblogosphere that the hermit had more or less abandoned for the duration. I understand that the book (whose exact title has yet to be decided) will be published in the autumn of this year, and more details will be forthcoming.

Writing the book has been a roller-coaster ride, at the same time draining and stimulating. I have learned an incredible amount and encountered extraordinary characters, some of whom I had known about, some of whom were new to me. In particular, among the extensive reading that has been involved, I have enjoyed the luminous writing of Mary Austin (1868-1934) on the American southwest, its landscapes and denizens. I became fascinated by her description of the ‘lost borders’ of the desert, a concept that resonates with so many aspects of the nature of the environment. In The Land of Little Rain, her opening words are as follows:

East away from the Sierras, south from Panamint and Amargosa, east and south many an uncounted mile, is the Country of Lost Borders.

Ute, Paiute, Mojave, and Shoshone inhabit its frontiers, and as far into the heart of it as a man dare go. Not the law, but the land sets the limit. Desert is the name it wears upon the maps, but the Indian's is the better word. Desert is a loose term to indicate land that supports no man; whether the land can be bitted and broken to that purpose is not proven. Void of life it never is, however dry the air and villainous the soil.

And here, as a taster, is the summary of the book from the original proposal:

Arid environments cover a quarter of our planet’s land area and are home to some half a billion people. They are landscapes of extremes and contrasts, constant change, metaphors and myths, landscapes of the mind as well as physical reality. “The desert” as an idea has long captured the Western imagination, but in ways that too often fail to capture the true scope and diversity of the reality or the viewpoint of peoples for whom the desert is home. This book attempts to bridge the gaps, both scientific and cultural, between perception and reality, while celebrating the fascination, the excitement, the contrasts, and the importance of arid lands and their inhabitants. It is intended that the book will be entertaining as well as informative – and surprising.

A book about the desert is, as much as anything, a book about water. Of course, “arid” implies an absence of water, but that absence is rarely absolute. Unlike forests or the ocean, the desert has no borders, but rather transitions over which the relative absence of water changes, imperceptibly but vitally. It is these lost borders, these desert margins, that provide the stage for great changes – human, environmental, ecological, geological – today and throughout the history of the planet and its life. The desert margins are in a constant state of flux; periods in which the hyper-arid desert cores have shrunk have offered corridors where previously there were only barriers, permitting the great journeys of human evolution and migration. The ebb and flow of aridity, the changing availability of water, continues to play a vital role in today’s social, political, and environmental arenas.

The extremes and contrasts of our planet’s deserts are both inorganic and organic, and work on all scales. The geological processes whereby the diversity of the desert landscape is sculpted operate with sudden violence and with indiscernible slowness. Desert life, from the microbial to the mammalian, has adapted to deal with extremes of temperature and aridity, often in extraordinary ways. And it is the scale of the desert, the “infinite presence”, that has captured imaginations and created theologies.

There is an intimate relationship between the desert and our environmental and cultural heritage, but that relationship varies profoundly according to the context. The desert as conceived and viewed from the “concrete deserts” of Chicago or Milan is a very different place to that of the Bedouin or the nomads of the Gobi, and this book attempts to capture and illustrate those contrasts. Western desert stories are about exploration of the exotic and the hostile, and the making of maps, but the stories of peoples for whom the desert is home are about water and their maps are songlines. And yet, despite these differences, the fascination of the desert has long been a source of inspiration in the imaginations of both outsiders and insiders, albeit expressed in different ways. The beauty and romance of the desert may not be exactly that of the Western imagination, but it is nevertheless a powerful concept that has stimulated a wealth of art and literature across cultures and throughout history, from Deuteronomy to The English Patient, from Aboriginal dreaming to Dali.

Arid and infertile though deserts may be, they have, nevertheless, been the birthplaces of critical evolutionary adaptations, civilisations, agricultural and social progress – and ideologies. And difficult though they may be to define, the active roles that changing deserts play in the evolution of our climate and society demonstrate that thinking about arid lands and their future requires a cross-cultural and cross-disciplinary approach, through time and space. This book attempts to at least tell the stories that illustrate the basis for such an approach.