Climate change is, among other things, making it more and more difficult to get to the beach. Recent studies show that rising sea levels have been shrinking America's beaches through erosion and inundation. This trend is unlikely to slow down anytime soon, and some scientists predict that we will see feet of additional sea-level rise within our lifetimes. While beaches are shrinking, reducing the availability of recreational opportunities for locals and tourists alike, the number of people who want to visit the beach has grown dramatically. The growth in demand is due to a variety of factors, including the very low cost of going to the beach, its prominent place in American culture, and-of course-the fact that the combination of oceans, waves, and sand makes for an irreplaceable outdoor experience.In his classic paper, Toward a Theory of Property Rights, the economist Harold Demsetz hypothesized that, as the availability of a resource declines or as demand increases, people will have a greater incentive to convert the resource from a commons into pieces of private property. Demsetz's hypothesis has proven correct with respect to beaches: many landowners have responded to the era of less beach and more visitors by expending resources on beach privatization. The attempted privatization of America's beaches does not evince a coordinated attempt to establish a market. Instead, what landowners and their lawyers have done is to convince the courts to recast the beach, which for centuries had been a blurry mix of public and private rights, as a fundamentally private holding that might occasionally be burdened with the odd public right-of-way.Beach privatization exacerbates the effects of unequal wealth by converting a place of outstanding, low-cost recreational opportunities into a string of exclusive backyards that enhance the value of already-expensive beachfront homes. In addition to the fact that landowners have convinced courts of law to facilitate wrong-way wealth transfers, they have also made a substantial dent into the social justice supplied by low-cost, high-quality recreation.This Article explains how the current privatization movement is contrary to almost a millennium's worth of common law meant to ensure that beaches would continue to supply the ecosystem service of "connectivity "-a low-cost connection between land and sea-not just to the wealthy, but to the working person and the wanderer as well. After explicating the conflict between privatization and tradition, the Article goes on to provide a number of theories that history-conscious courts can use to strike a blow for equality and to restore a healthy balance between public and private rights.

Over the past few decades, landowners have tried to use the First, Fourth, and Fifth Amendments to fully privatize the upper, dry-sand part of the beach. If these efforts were to succeed, there would be a host of negative consequences, and not just for surfers. In most of the states in which beaches are economically important, including California, Florida, New Jersey and Texas, privatized dry sand would mean little to no public access at times when the public, wet-sand part of the beach is submerged, that is, in the hours immediately before and after high tides. Decreased beach use would severely impact businesses dependent on beach-goers and would force local governments to expend limited funds to purchase beaches. This Article explores the possibility that courts and the public can put an end to the beach privatization movement simply by pointing to the common law of waterfront property. Historically, both courts and scholars have ignored the challenging title issues created by the common law and, in particular, by the rules governing boundary relocation after waves, currents, tides, and winds have changed the shape of the beach. These rules make it impossible to know the location of public-private beach boundaries in real time, that is, at the moment the landowner wishes to use the boundary to exclude others from her property. The consequence of real-time uncertainty is that, as a matter of law, landowners do not have an enforceable right to exclude. The absence of this property right not only undercuts constitutional claims premised on its existence, but also leads to the conclusion that the public has the right to use the entire beach. The vanished right to exclude does, however, leave a vacuum. Because trespass rules are different for structures, a landowner could still use the law to keep people out of a beach house. However, if the beach is public, the landowner would be left without the ability to prevent uses, like raucous parties or truck races, that impinge on her ability to enjoy her home. In order to mitigate this problem, the Article concludes by recommending that courts or legislatures create a more stable exclusion line at the top of the beach, and grant each landowner the right to prevent unreasonable public use of adjacent beach areas.

Oceanfront landowners and states share a property boundary that runs between the wet and dry parts of the shore. This legal coastline is different from an ordinary land boundary. First, on sandy beaches, the line is constantly in flux, and it cannot be marked except momentarily. Without the help of a surveyor and a court, neither the landowner nor a citizen walking down the beach has the ability to know exactly where the line lies. This uncertainty means that, as a practical matter, ownership of some part of the beach is effectively shared. Second, the common law establishes that the owner of each oceanfront lot holds easement-like interests in adjacent state-owned land; and, the state holds similar interests in the oceanfront lot. For these two reasons, the legal relationship between the oceanfront owner and the state is more interdependent than it may seem at first. It is much more than the usual neighbor relationship.Disputes over oceanfront property are often framed as cases of wrongful taking under the Fifth Amendment’s Just Compensation Clause. The Supreme Court has historically applied its standard takings test for determining whether or not a state is liable for the impact of its rules on a landowner’s rights. This Article is the first to examine the question of whether use of this standard test is optimal, or even logical, in cases between states and the owners of oceanfront land. Given the fact that climate change impacts such as sea-level rise are likely to increase rates of conflict along the legal coastline, the potential benefits of a test that takes into account the special relationship between these parties are significant. Support for an alternative test can be found in two sets of common law property rules, the upland rights and public trust doctrines, as well as in a mechanism that nineteenth-century courts used to resolve similar disputes.

European flat oyster Ostrea edulis fisheries were once abundant around the UK coastline. The sole remaining productive O. edulis fishery in Scotland is in Loch Ryan. This fishery has been privately owned and managed by a single family since 1701. Economic theory predicts that ownership, whether public or private, is a necessary condition for rational fishery management. In this paper, a series of four leases and a licence are examined, covering an 85-year period over the 20th and 21st century, to examine whether the management of the Loch Ryan fishery conforms to the expected norms of rational management. The leases show that, over this period, the owners appear more willing to expend resources on regulating tenant behaviour, supporting the conclusion that successive generations of owners developed an evolving sense of what “rational management” might require. The results of this study could inform the management of other fisheries – both public and private – by emphasising the importance of learning from experience.

Environmental law scholars, practitioners, and policymakers have wrestled for some time with the implications of climate change for environmental law. There is widespread, although not universal, agreement that climate change requires greater flexibility in environmental legal systems. Flexibility reduced procedural requirements for administrative agency decision making and less rigid substantive standards would allow the agencies that implement environmental law to adapt to a future world characterized by dynamic, uncertain changes in natural resource systems. According to its proponents, flexibility would make it easier for agencies to more frequently update their management or regulatory decisions to respond to changed conditions, and also to facilitate adaptive management. However, there has been little exploration of the conditions under which flexibility improves or undermines the effectiveness of environmental law.This Article examines two areas of environmental law that have historically had a great deal of flexibility: hunting law and marine fisheries law. In both areas, management and regulatory decisions are updated on a regular basis by the relevant agencies, often annually. Procedural requirements for making decisions are often streamlined. And the substantive standards that apply to agency decisions are often quite broad and flexible, leaving substantial discretion to the agency. Yet these two areas of environmental law have experienced very different outcomes in terms of implementation: fisheries management in the United States is often perceived as failing, while hunting law is seen as quite successful in achieving its goals.This Article concludes that these different outcomes are the result of the interaction of legal flexibility with two other factors: the level of uncertainty about the condition or status of the natural resource being managed and the political context for regulatory or management decisions. Fisheries management is characterized by much greater levels of uncertainty about population levels than hunting management. Moreover, fisheries are the one area in the U.S. economy where there is still a substantial commercial industry based on the capture of wildlife for human use. The combination of scientific uncertainty and flexible law creates a substantial discretionary space in which decision makers can operate. In other words, decision makers have a wide range of legally defensible management choices. The fishing industry is able to exploit this fact to argue for weaker, but still legally defensible, regulation. The industry has every incentive to organize in pursuit of this goal. In contrast, commercial hunting was eliminated in the United States in the nineteenth century. Thus, there are no major interest groups with a stake in increasing hunting quotas, and therefore there is no substantial effort to manipulate a flexible legal system to weaken regulatory standards. Whether flexibility will be successful in a regulatory or management system will depend in part on the scientific and political context for the resource being protected or managed Flexibility is not a panacea that can be applied uniformly throughout environmental law.

Ocean zoning represents a governance mechanism with potential to solve many existing marine environmental problems. President Obama’s Executive Order 13,547 is the first serious effort by the federal government to move toward zoning of federal waters. The initiative contained in E.O. 13,547, described as “Coastal and Marine Spatial Planning,” includes the two components of a traditional zoning process – plan development and the creation of enforceable, spatial rules. It is not clear why the President opted not to include the word “zoning” in the title of the initiative; more important, it is not clear why the “enforceable rules” piece of the initiative is drafted in such a complex and murky way. I argue that this lack of clarity, in particular the failure of E.O. 13,547 to identify the development of durable, dominant-use rules as a key objective of the planning process, is problematic for two reasons. First, such rules are the most important functional components of effective zoning regimes, which work because they give clear priority to single or compatible uses in geographically-defined spaces. Second, the failure to pre-commit to the development of durable, dominant-use rules greatly reduces the incentive for interest groups to participate in the initial planning process. Without buy-in from the full range of interest groups, from the oil and gas industry to marine conservationists to alternative energy organizations, the President’s initiative is unlikely to produce meaningful, long-lasting improvements to ocean governance.

Visiting Professor, University of North Carolina School of Law and Distinguished Professor, University of South Carolina School of Law. All of the ideas in this paper are direct or indirect products of a decade -long collaboration with Steve Palumbi, Jim Sanchirico, and Buzz Thompson. I would like to thank the Florida State University College of Law for inviting me to participate in the 25th Anniversary Symposium for the Journal of Land Use and Environmental Law's Distinguished Lecture Series, the students of the Journal for organizing and hosting an outstanding event, and my co-panelists, especially Donna Christie, John Echeverria, Alison Rieser, and Bill Rodgers, for their friendship and guidance over the years. 1. Exec. Order No. 13,547, 75 Fed. Reg. 43,023 (July 22, 2010). Based on a review of past executive orders, Executive Order 13,547 appears to be rare or unique insofar as it incorporates a lengthy (77 pages, excluding appendices) external document, the Final Recommendations of the Interagency Ocean Policy Task Force. WHITE HOUSE COUNCIL ON ENvtl. Quality, Final Recommendations of the Interagency Ocean Policy Task Force (2010) [hereinafter TASK FORCE REPORT]. Executive Order 13,547 adopts the recommendations of the [task force], except where otherwise provided in this order. Exec. Order No.

This article explores a phenomenon that might be called “gift-form generosity”: people earning similar amounts of income are more willing to part with a dollar’s worth of one kind of property than another. Among all income groups, the form of property with which charitable donors are most willing to part is the “conservation easement.” Data show, for example, that the average charitable easement donation is more than 100 times greater in value than the total, annual charitable contribution made by the average American taxpayer. Why are donors so willing to part with conservation easements? The answer may lie in donors’ ability to engage in what I call “donative arbitrage,” that is, the opportunity to profit, in tax-benefit terms, from the difference between the donor’s subjective valuation of the property and the value a hypothetical “willing buyer” would pay for it. To the extent that this hypothesis is correct, donors may in many cases be willing to sell their easements for less than the amount they currently receive as a tax benefit. Overpaying for conservation easements reduces the amount of public money that would otherwise be available for much needed conservation on private land. Allowing deductions for easement donations also creates individual incentives that are opposite of those that would produce optimal results. Specifically, landowners who most prefer to keep their land in its current condition (and who would thus give up very little in agreeing to land-use restrictions) will be the most likely to donate conservation easements. On the other hand, because similar restrictions would be expensive to them, landowners who are most interested in developing their property will be the least likely to donate. Thus, easement subsidies are spent protecting the land that is least in need of the protection afforded by easements. The article concludes by suggesting several ways that Congress might change the law so as to improve the efficiency of conservation easement subsidies.

Time-area closures are commonly used to manage fisheries bycatch and involve temporarily closing an area of the ocean to particular fishing gears. We examine conditions in which implementing a time-area closure would increase the economic value of fisheries, focusing on a case study application in the Gulf of Mexico. Pelagic longline fishermen catch the highly valued Atlantic bluefin tuna (Thunnus thynnus, Scombridae) on their Gulf of Mexico spawning grounds while fishing for Atlantic yellowfin tuna (Thunnus albacares). We analyze a multispecies, multifishery bioeconomic model that includes information on migratory patterns from electronic tagged bluefin tuna. We use dynamic optimization to identify management strategies that would maximize the net present value of tuna fisheries, allowing for discounting of future benefits and costs relative to the present. If past fishing mortality rates continue in Atlantic bluefin tuna fisheries, implementing a time-area closure in the Gulf of Mexico incurs economic costs. However, the net present value of the fisheries is increased by implementing a time-area closure as part of a broader commitment to rebuild the heavily depleted bluefin population, provided the discount rate and the costs of such a closure in forgone fishing opportunities are not too large. The increase in economic value offered by a time-area closure is small relative to the overall economic value of rebuilding itself and it may be economically optimal only to implement a closure once sufficient rebuilding has already taken place.

Ocean-zoning arguments often center on the biology of ocean species, the geography of fishing-use patterns, and the need for preventing use conflicts. Here we expand this discussion to the social and legal aspects of ocean zoning, focusing on comprehensive planning, segregation of activities into use-priority areas, and the allocation of user rights within each zone. The inclusion of all of these features within an ocean-zoning regime can be a catalyst for a variety of ancillary benefits, including opportunities for user groups to form informal or formal long-lived institutions and a reassessment of the focus and scope of the regulatory institutions involved in ocean management. Along with the ability of users to negotiate and trade within and between zones, both features will lead to improved conflict resolution, efficiency of use, and ecosystem stability critical components for the production of ecosystem services and maintenance of biological and human economic benefits.

Summary 1. Spatial management measures, such as time–area closures, offer a widely advocated strategy for managing bycatch in fisheries and fisheries that impact particular life‐history stages, like spawning. The effectiveness of proposed management strategies can be evaluated across different policy dimensions of which we focus on one – maximising total profit. We examine whether a time–area closure presents an economically efficient means to manage bycatches of Atlantic bluefin tuna Thunnus thynnus on their spawning ground in the Gulf of Mexico by longline fishermen targeting yellowfin tuna T. albacares. 2. We combine a behavioural representation of bluefin migration with population dynamic models for the two species and an economic representation of relevant fisheries and solve for optimal, equilibrial management strategies. 3. The models predict the western Atlantic bluefin population is close to open access harvesting conditions, and that rebuilding the bluefin population would increase overall economic revenues from the fisheries by 460%, regardless of the specific actions taken in the Gulf. 4. Time–area closures in the Gulf are predicted to be economically costly if there is little scope for recovery of the bluefin stock. However, the models predict such closures would offer limited economic benefits if there were a broader commitment to rebuild the bluefin population. 5. Synthesis and applications. Technological advances and improvements in our understanding of the life history of these and other species make increasingly precise spatial effort control possible in many fisheries. The case study illustrates when such management measures would maximise fisheries profits while accounting for population dynamics and differences in mortality from different fisheries. However, the case study also highlights that the more elementary policy challenge of preventing overfishing has still often to be overcome.

There is almost universal agreement that the most effective solution to open-access natural resource problems lies in some form of ownership.Authors disagree on the secondary question of which ownership form, i.e., private, community, or government, will produce the most efficient or equitable results under particular conditions.There has been little attention paid to the fact that government ownership, that is, regulation, is certain to produce results that all interested subsets of the public will view as inefficient and inequitable.Dissatisfaction flows inevitably from the requirements and realities of democratic decisionmaking structures and constraints.In other words, a democracy puts more emphasis on fair process and the incorporation of competing values than on achieving any particular objective.Thus, although government ownership might solve open-access natural resource problems such as those that occur in fisheries insofar as it creates a peaceable forum for dispute resolution, it does not lead to what anyone might consider well-managed fisheries.For government ownership and well-managed fisheries to coexist, the most logical solution is to create a subset of government structures, the goals of which are aligned with the preferences of various interest groups such as commercial fishers, recreational fishers, and marine conservationists.This approach, which is used on U.S. public lands, ensures that, within at least some parts of the public domain, groups will view management as having succeeded.Greater interest-group satisfaction should lead to welfare gains because those groups will, for example, feel less need to expend resources participating in costly agency processes.

For the past thirty years, the Magnuson-Stevens Fishery Conservation and Management Act has served as the primary legislative mechanism for conserving fish populations in United States marine waters. Although amended in 1996, the Act is still far from achieving Congress's goal of sustainable fisheries, as the social costs of fishing continue to outweigh the benefits. In this article, the authors describe the ways in which comprehensive ocean zoning could help remove the logjam that currently plagues ocean management. Under ocean zoning, the government would divide all or some of the ocean under its jurisdiction into a number of different zones or areas and then prescribe what uses of the ocean could be made in each zone. The authors argue that this would create a framework for both the re-alignment of industry incentives as well as the attainment of the broader goal of healthier ocean ecosystems by leading the interests assigned to those areas to develop a sense of group property rights that will improve inter-group relations.

Frontiers in Ecology and the EnvironmentVolume 6, Issue 1 p. 43-48 Two Views Is a new mandate needed for marine ecosystem-based management? Heather Leslie, Heather Leslie Center for Environmental Studies and Department of Ecology and Evolutionary, Biology, Brown University, Providence, RISearch for more papers by this authorAndrew A Rosenberg, Andrew A Rosenberg Institute for the Study of Earth, Oceans, and Space, University of New Hampshire, Durham, NHSearch for more papers by this authorJosh Eagle, Josh Eagle University of South Carolina, School of Law, Columbia, SCSearch for more papers by this author Heather Leslie, Heather Leslie Center for Environmental Studies and Department of Ecology and Evolutionary, Biology, Brown University, Providence, RISearch for more papers by this authorAndrew A Rosenberg, Andrew A Rosenberg Institute for the Study of Earth, Oceans, and Space, University of New Hampshire, Durham, NHSearch for more papers by this authorJosh Eagle, Josh Eagle University of South Carolina, School of Law, Columbia, SCSearch for more papers by this author First published: 01 February 2008 https://doi.org/10.1890/1540-9295(2008)6[43:IANMNF]2.0.CO;2Citations: 14Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Citing Literature Volume6, Issue1February 2008Pages 43-48 RelatedInformation

Legislative efforts to delegate zoning power to public land and ocean management agencies have generally proven unsuccessful. When given the power to create uniform-use areas such as parks and wilderness areas within their broader jurisdictions, agencies either have opted not to exercise it or have been extremely hesitant to do so. The tepid administrative response to zoning is not surprising. Zoning decisions are politically charged, are likely to offend powerful, concentrated interest groups, and erode the discretion that is the core of agency power. These aspects of zoning decisions explain why, by contrast, all states require that municipal zoning ordinances be approved by elected officials. Understanding the weaknesses of delegated zoning is important in the context of the many recent proposals to zone federal and state ocean waters. This Article argues that, based on past experiences and on political scientists' predictions, Congress and state legislatures should resist the temptation to delegate zoning responsibility to multiple-use agencies. There are more promising direct zoning options available, including a commission model similar to the one used in municipal zoning. In addition to informing ocean policy, the exploration of delegated zoning provides the opportunity to consider the practical problems with delegation, using a focused approach that seeks to identify the kinds of tasks with which agencies are particularly likely to struggle.