by Christopher Flavelle, Bloomberg
One April morning in 2016, Daryl Carpenter, a charter boat captain out of Grand Isle, La., took some clients to catch redfish on a marsh pond that didn’t use to exist. Coastal erosion and rising seas are submerging a football field’s worth of Louisiana land every hour, creating and expanding ponds and lakes such as the one onto which Carpenter had piloted his 24-foot vessel.
Suddenly, another boat pulled up beside Carpenter’s. “You’re trespassing,” the other driver declared, before chasing him and his clients down the bayou. The sheriff’s office later threatened to arrest Carpenter if he ever returned to the pond. There was just one problem: Under Louisiana state law, any waterways that are accessible by boat are supposed to be public property, argued Carpenter—even what was previously unnavigable swampland.
Carpenter sued the sheriff, as well as Castex Energy Inc., which owns the property around the pond, for interfering with his business. A district court decided against him in March, noting that an earlier ruling found that the territory was unnavigable swampland when the state sold it into private ownership in the 1800s. Carpenter is appealing that ruling.
Carpenter’s suit reflects a legal and political dilemma that’s beginning to reverberate around the country: As seas rise and coasts wash away, who owns the land that goes underwater? Versions of that debate are taking place in courtrooms, legislatures, and government offices, raising the question of whether and when climate change justifies seizing private property. The stakes are enormous, affecting not just ownership of offshore mineral and fishing rights but also potentially trillions of dollars of coastal real estate.
A decade after the global financial crisis popularized the term “underwater real estate,” parts of the U.S. are grappling with a new, more literal version of that problem.
“There’s no question it will be a huge fight,” says Holly Doremus, a law professor at the University of California at Berkeley who specializes in environmental law. “We don’t exactly know the boundaries of what the state can do.” For centuries, a body of law called the public trust doctrine has stipulated that, when it comes to coastal property, anything below the average high-tide line is owned by the government for the use and benefit of the public. Those rules also cover what happens when the high-tide line moves. If that movement happens suddenly—for example, if a portion of beach is washed away by a storm—the land owner retains title to the property provided he or she restores it to dry land.
By contrast, if the high-tide line moves slowly, state ownership moves with it. And because it’s Mother Nature taking the land, not the government, there’s no legal requirement for the government to compensate property owners. Legal scholars say climate change has scrambled that distinction. “How do you characterize sea level rise? Is it fast or slow?” asks Josh Eagle, a University of South Carolina professor who specializes in coastal law. “Those rules don’t really make as much sense anymore.”
That uncertainty has compounded the awkward politics of governments taking control of private land without paying for it—especially in Southern and Gulf states with a tradition of protecting private property, and where sea level rise is happening fastest. In North Carolina, the state has blocked attempts by local officials to demolish homes whose foundations are underwater. In Florida, the legislature just made it harder for counties with shrinking beaches to intrude on homeowners’ private land. And in Alabama, owners of lots that are now completely underwater want the government to restore their land, even though nobody knows who would then own it.
Around the country, the combination of rising seas and political stalemate will eventually force courts to intervene, says Peter Byrne, faculty director of Georgetown University’s Environmental Law and Policy Program. Asked how those court fights are likely to unfold, Byrne responded: “We’re going to find out!”
In Louisiana, the combination of rising seas, subsiding land around the Mississippi Delta, and the reduced deposit of sediment—thanks to man-made flood controls—has put the state at the forefront of the battle over erosion and property rights. Louisiana is losing land faster than anywhere else in the country. Its bounty of oil, gas, and fisheries has made coastal landowners especially reluctant to relinquish their rights to property that goes underwater.
The state has, in turn, been reluctant to claim these newly created waterways, critics charge, depriving the public of access for fishing and other activity, as well as revenue from any future oil and gas discoveries. Jacques Berry, a state spokesman, says Louisiana asserts its claim to submerged lands whenever it believes, “after scientific and historical analyses, that it has a valid legal claim.” That’s easier said than done: Louisiana employs a single person who’s qualified to survey water bottoms.
Others say the real explanation for Louisiana’s reluctance to claim ownership of submerged land is that officials are loath to antagonize coastal landowners, many of which are the same oil and gas companies that are the core of the state’s economy. In March, Kevin Pearson, a Republican member of the Louisiana House of Representatives, introduced a bill making clear that the state’s navigable water bodies are public property. To his surprise, the bill made it out of committee in April—and then died on the floor. “The landowners are so freaking powerful,” he says.
In Florida, rising seas and erosion have sparked a different debate: As beaches recede, should private property owners near the coast be forced to let the public use their share of what remains? In Walton County, part of Florida’s Panhandle that includes Miramar Beach, the line between public and private land has always been tenuous. The state owns everything below the high-tide line, but the dry beach is a mix of public and private property. Historically, the public has been free to wander across sands that are technically owned by private households.
Then two things happened. In 2005, Hurricane Dennis struck the Panhandle, washing away swaths of sand. The Florida Department of Environmental Protection now lists 18 miles of
Walton County’s beaches as “critically eroded,” among the worst in the state.
A few years later, county officials started to notice a spike in confrontations between beachfront homeowners and beachgoers who wandered up onto the sand in front of their homes. The property owners started calling the police, or worse. “We had a homeowner brandish a weapon,” says Louis Svehla, a county spokesman. So last year, officials passed an ordinance that explicitly required homeowners to let the public use the beach on their property. The rule wasn’t a direct response to climate change, Svehla says; the county just wanted to clarify the previously unwritten rules for sharing the beach—rules that had started to fall apart.
Private property owners are suing to stop the ordinance. Meanwhile, Florida lawmakers passed a bill in March that would make it harder for local officials to grant public access to private beaches, requiring such rules to be approved by a judge first. Kathleen Passidomo, the state senator who sponsored the bill, says local officials should be careful about impeding private property rights above the high-tide line. But as that line keeps moving inland, she added, so will the public’s right to access what is now private property. She says it’s unclear what will happen next. “The real problem will be when the mean high-tide line is 20 feet from the back door,” says Passidomo. “At some point it could go right through somebody’s house.”
As sea level rise accelerates, potentially leaving coastal homes abandoned from Texas to New England, the legal debate over submerged land could determine whether governments have the authority to tear down those homes. In 2009, a storm damaged six beach houses in Nags Head, N.C., washing away part of the beach they stood on. Town officials claimed that the houses, whose owner had been renting them out as vacation homes, were now below the high-tide line and effectively trespassing on public property. According to the town, that meant the houses could be declared a nuisance and torn down—with no need to pay the owner.
The owner sued, with backing from the Pacific Legal Foundation, a libertarian advocacy group supported by the Koch brothers. Jim Burling, the foundation’s vice president, says there was a fundamental flaw in the town’s argument: Only the state, not local officials, has the authority to declare that the high-tide line has moved—and where the line’s new position might be.
And the state, according to Cliff Ogburn, Nags Head town manager, had no desire to get involved. If Nags Head wanted to tear down homes that were now in the water, state officials told Ogburn, it would first have to buy them from the owners through eminent domain. “I don’t think there’s interest at the state level to remove private property,” says Ogburn. The office of Governor Roy Cooper didn’t respond to calls or emails seeking comment.
In 2015, town officials settled the suit, agreeing to pay $1.5 million to buy the six properties. Ogburn says Nags Head is now in a bind: It doesn’t have the money to buy out other abandoned homes whose foundations are below the high-tide line—a number that will increase as the waters rise. “Unless the state takes action, I don’t see any other mechanism for getting these houses removed,” says Ogburn. “So they just sit there.”
The stalemate in Nags Head could repeat itself in such large coastal cities as Wilmington, N.C., or Norfolk, Va., says Frank Alexander, a law professor at Emory University who specializes in the rules surrounding vacant or abandoned properties. “Who’s got responsibility for removing the damaged structures?” he asks. Failure to answer that question could mean a “coastline dotted with these structures that are half sticking out of the ground.”
In other parts of the country, the fight over submerged land has taken a surreal twist: Who owns land that the government saves from oblivion? Since 1984, Maria Levenson has owned a beachfront lot on the southern shore of Dauphin Island, Ala., a slender strip of land at the mouth of Mobile Bay. But it comes with a caveat: Since Hurricane Katrina struck, washing away whole chunks of the island’s southern side, Levenson’s property has been completely underwater.
Yet Levenson, along with dozens of other property owners, continues to pay taxes on the submerged lots. Their hope is that the U.S. Army Corps of Engineers will decide to dredge sand from the ocean bottom and deposit it along the beach, putting their properties back above water and allowing them to rebuild. “It’s Gulf-front property,” says Levenson, who now lives in Tennessee. “Someday it will be valuable.”
The idea isn’t far-fetched. The Corps regularly restores coastal land around the country, and has already done so along parts of Dauphin Island. At a public meeting in Mobile in February, residents from Dauphin Island urged the Corps to do so again, in the area around Levenson’s property. But there’s a problem: If the land were restored, nobody knows who would own it. “Some of these properties that are underwater may not return to private ownership,” says Jeff Collier, Dauphin Island’s mayor. “That is definitely a possibility.”
Patti Powell, director of the State Lands Division of Alabama’s Department of Conservation and Natural Resources, which is studying whether to rebuild the shore, says there’s no policy determining whether Levenson and other property owners would still hold the land if it gets reclaimed. “I’m not sure that we have any precedent,” says Powell.
If the situation in Dauphin Island seems remote, imagine the same question being applied to huge swaths of Louisiana, where the state plans to spend tens of billions of dollars to reclaim land that’s going underwater. Gordon Schoeffler, the lawyer representing Daryl Carpenter, says it’s unclear what would happen. “If you have an area that has become eroded, and the Corps of Engineers has come in and done a project where they literally pump mud into a water body and it becomes land again, who owns that?” Schoeffler asks. “Nobody knows.”
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