American letter | Who owns the beach?

(Dewey Beach, Delaware) Dewey Beach is like every American maritime community, from Maine to Florida. The broad commercial boulevard with its water towers, its outlets in pastel tones, its seafood and fried food restaurants.

There are small cul-de-sac streets leading to the Atlantic and its golden beaches.

It is Memorial Day Monday and they came by the thousands from Philadelphia, Baltimore and Washington for the weekend that marks the start of peak season in Delaware.

While taking a walk, the visitor quickly comes across a sign which is also increasingly common on American beaches: “Private beach, trespassing prohibited – Members only – Security measures in force”.

The sign has its effect: the segment of the beach is completely deserted. Except for a horseshoe crab – the prehistoric animal can legitimately claim acquired family rights over millions of years. She’s not super proud, stuck there waiting for the next wave like a sandy surfer.

In the distance, in “private” territory, a guy collects things on the beach.

In a burst of delinquency, I ignore the warning. Yes, madam: I dare to set foot in millions of grains of private sand. Nothing happens. Neither police siren nor guard dog. I advance to the beach skimmer.

“Are you a member?”

“No, no, I’m an artist, I come to collect pieces of glass polished by the sea…”

He shows me a handful of shards of glass and I try to chase away the images of the inevitable seaside craftsmanship that cloud my brain.

“They’re not arresting you?” It says “entry prohibited”…

— No, no, as long as we don’t settle down on the beach, it’s fine. »

The passerby is tolerated. As long as he’s just passing through.

However, isn’t the beach supposed to be public by definition?

It depends on the legal definition. And increasingly, the answer is no.

The massive attendance at beaches in the United States, which only dates back to the beginning of the 20th century^e century, was accompanied by sales of plots of land along the oceans, and developments of all kinds.

From Malibu to Mar-a-Lago, oceanfront land is some of the most expensive in the United States. Promoters sell a view, but also exclusivity. Those who buy houses costing 5, 10, 15 million apparently don’t want to see strangers playing pétanque or slouching in front of their veranda.

This has given rise to a whole body of court decisions, which go in all directions, depending on the State.

According to Professor Josh Eagle, of the University of South Carolina School of Law, court rulings, in fact, mostly point in one direction: increasingly restricted access for the public and an expansion of the private domain. .

Beach ownership is a complicated tangle of federal, state, and local law, and varies by jurisdiction. But its basis is English law, historically stipulating that up to the high tide line, the beach is public.

This line varies over the seasons and years, and states have extended public space to the vegetation line. Others extended private land to the low tide line.

Since the United States seemed like a limitless virgin territory just waiting to be developed, a decision was made to ease access to property along otherwise public lands.

“Initially, when states didn’t have a lot of money, they wanted to encourage businesses to establish themselves and build infrastructure,” explains Mr. Eagle. This is how we moved away from the English theory of the common good: in Great Britain, permission from the Crown is required to occupy this territory.

Many conflicts emerged, notably between surfers and wealthy residents. Surfers’ associations are also among the most active players in defending free access to beaches. Epic battles are taking place in California, but also in the Hamptons, on Long Island in New York State, between the ultra-rich and the users who have had their beaches eaten away.

“The problem is that most of the cases are brought by very rich people, and it is under their leadership that the law takes its tangent,” explains Professor Josh Eagle, author of several studies and articles on the issue.¹.

Similar problems arise around lakes and forests. If the public forest is surrounded by huge houses on private land, how do we access it? It is nature that we are imperceptibly privatizing.

“We’re allowing people to capture the value of one public property at the expense of others,” Josh Eagle told me in a telephone interview.

There is no shortage of miles of public beach in the United States. But if “closed communities” (gated communities) are multiplying, what will the edge of the ocean look like in 20, 50, 100 years?

Add to this erosion, which is ravaging coastlines everywhere, and rising sea levels, and we see the scarcity of this public good coming. Right here in Dewey, under the supervision of the army, we rebuilt the beach last year, using heavy machinery for months to collect hundreds of thousands of cubic meters of sand swallowed by the ocean.

“Is this going to end in sea walls?” asks Mr. Eagle.

Many people want to protect this extraordinarily popular and free playground, so deeply rooted in American culture.

Will the beach become the privilege of “members” caparisoned in their gated communities like horseshoe crabs in their shell, deigning to generously let the glass collectors pass?

1. Read On the Legal Life-History of Beaches (in English)