Thursday, June 13, 2013

Protecting Public Property through Information

Thomas Jefferson observed that "information is the currency of democracy." It is also a source of power, especially when it is withheld, as we've been reminded in recent days by the exposure of the NSA's domestic surveillance program. And "private information," as Oscar Wilde noted, "is practically the source of every large fortune."

All three of those descriptions of information - as the currency of democracy, as power, and as a source of wealth - are on display in the ongoing battle between coastal property-owners in  California and other citizens over beach-access rights. Today's New York Times has an interesting story (here) about one citizen, Jenny Price, who has developed a smartphone app disclosing the existence of publicly-owned beaches over which private landowners are trying, through various legal and illegal means, to maintain private control. In these disputes, the normally very powerful California Coastal Commission has proven unusually impotent at protecting public rights of access.

Public ownership of seashores has a very old pedigree, going back at least to the Institutes of Justinian, compiled in the first century of the common era. Under Roman Law, resources such as the air, water, seas, and seashores were considered res communes omnium, the common property of all, meaning that no one could exclude anyone else from access and use. At English common law, the beds and banks of navigable water bodies, including seashores up to the mean high-tide line, were considered freely accessible public property. When the American colonies seceded from the UK, property rights in the beds and banks of navigable water bodies vested in the colonial governments; and under the constitutional "Equal Footing Doctrine," new states entering the Union gained the same public property rights. Finally, under the "public trust doctrine" of American common law, states may not alienate equitable title to publicly owned beds and banks, but must forever maintain that equitable title in trust for their citizens.

In the case of valuable beach fronts in Malibu, there really is no disputing the state of title. Below the mean high-tide line (which is variable), the public owns the beaches. Efforts, including by some ego-maniacal Hollywood bigwigs, to prevent the public from accessing those areas are wrongful, and should be treated as such by the Coastal Council and the State of California.

Jenny Price has done the true owners of California's beaches a real service, providing them with the information they need to reclaim their public property.

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