"IN recent years, fences and barricades have blocked the public right to have access to our seas. We are becoming a landlocked people, fenced away from our own beautiful shores, unable to exercise the ancient right to enjoy our precious beaches." This is how Senator Ralph Yarborough of Texas characterized the relationship between the American public and its coasts in 1969. Nearly a half-century later, those same words could have described much of the New Jersey and Long Island shorelines on the eve of Hurricane Sandy.
In the years between, up and down the Eastern Seaboard, beachfront property owners, wealthy municipalities and private homeowners' associations threw up a variety of physical and legal barriers designed to ensure the exclusivity — and marketability — of the beach. These measures were not only antisocial but also environmentally destructive.
By increasing the value of shoreline property and encouraging rampant development, the trend toward privatizing formerly public space has contributed in no small measure to the damage storms like Hurricane Sandy inflict. Tidal lands that soaked up floodwaters were drained and developed. Jetties, bulkheads and sea walls were erected, hastening erosion. And sand dunes — which block rising waters but also profitable ocean views — were bulldozed.
It didn't have to be this way. In 1967, Bob Eckhardt, a first-term congressman from Texas, came to Washington determined to do for the nation what he had done for the Texas coastline. As a state legislator, Mr. Eckhardt had passed the nation's first open beaches law, the Texas Open Beaches Act of 1959, which defined all land below the vegetation line as belonging to the state for use by the people.
Rather than a departure, this bill was a restoration of the ancient right of the public to the foreshore — a right dating from Roman civil law that was incorporated into English common law, transported to the American colonies and finally preserved in the new nation in what came to be known as the Public Trust Doctrine. Sadly, each state interpreted that doctrine differently. While on the West Coast, a strong tradition of public beach access prevailed, along much of the Atlantic and Gulf of Mexico, and especially along the crowded Northeast corridor, states tended to adopt a very narrow interpretation. Some states maintained that the Public Trust Doctrine covered only the public's right to fishing and navigation, and still others largely ignored it.
While Mr. Eckhardt's bill was, in the truest sense, conservative, its effects on the Texas coastline were nothing short of radical. The fences and jetties that beachfront property owners had constructed to restrict public access were dismantled. In some instances, buildings were torn down. Slowly, the beach returned to a more natural state.
The National Open Beaches Act, first proposed in 1969 by Mr. Eckhardt with Senator Yarborough, intended to do the same, by outlawing "any obstruction, barrier, or restraint of any nature which interferes with the free and unrestricted right of the public ... to enter, leave, cross, or use as a common the public beaches." But opponents assembled a host of arguments against its passage. Open beaches would attract more people to the shore, tying up traffic, ruining fragile sand dunes and leaving a trail of litter. It was the classic "tragedy of the commons" thesis. Given how overrun with bathers public beaches had become, this argument seemed to make sense.
But time has shown that the biggest threat to America's coasts is not an overabundance of public space but its absence. As the bill stalled in Congress, private development along the Eastern Seaboard accelerated. By 1974, one coastal scientist bemoaned that the "waterfront lot" had "replaced the public beach as the modern symbol of coastal America." Beaches were no longer a public resource but a private asset, and ensuring the value of beachfront real estate came to play an increasingly influential role in shaping environmental policy.
Reaffirming the public's right to the beach could be the first step in a more just and sustainable coastal environmental policy. The argument used to defeat the Open Beaches bill — that it would depress real estate values — is precisely the reason we need to reintroduce an updated version of this legislation now. Without the ability of property owners to wall off and claim the beach as their own, coastal real estate values would slowly decline, and the pressure to develop would dissipate (or at least become more ecologically sensitive).
I'm not calling for a full-scale retreat from the coast. Long before the modern age of coastal development, people lived by the sea. Their homes were routinely battered by storms, and they didn't try to defy nature by constructing fortifications to preserve each attractive stretch of shore, since they knew that what was there today would most likely be gone tomorrow. We need to return to those sustainable practices, and an open beaches act could help us get there.
By dedicating beaches to the states for use by the public, Congress would be declaring an end to the destructive — and futile — attempts by private property owners to hold back the sea. It would ensure a better future for America's coasts and restore one of our founding legal principles. We would not be confiscating private property, but merely recognizing who owned it all along: us.
Andrew W. Kahrl, an assistant professor of history at Marquette, is the author of "The Land Was Ours: African American Beaches From Jim Crow to the Sunbelt South."
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