A California-Specific Commentary on Recent Property Rights Cases
Earlier this month, I reported on a Florida case now pending before the U.S. Supreme Court, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. Earlier this week, I reported on some other property-rights issues currently in the news.
Yesterday, one of my partners, Howard Coleman, took things a step further, attempting to tie recent property-rights issues into a big picture view of what it all may mean for California property owners.
His piece, Sea Level Rise and Coastal Boundary Lines – Consequences of Climate Change, examines the Florida case, the Ninth Circuit's recent decision in United States v. Milner, and the California State Lands Commission's December 7 Report on Sea Level Rise Preparedness.
The focus of his piece is foreshadowing what these cases and potential future climate changes may mean for California property owners. (For a look at the State Lands Commission's Report's findings about potential impacts to our ports, look at the December 10 Los Angeles Times article, Rise in sea levels threatens California ports.)
The bottom line -- at least according to Howard:
[C]oastal property owners need to recognize the ramifications of sea level rise before it is upon them, in order to have the time to apply for and, if necessary, to litigate the right to build the required protective structures. Otherwise, such homeowners will find both their lands and rights lost to erosion.
The facts of the Milner case suggest owners would do well to heed this warning. There, coastal landowners built coastal protection structures on their own lands, but were thereafter found liable for trespass when changes to the mean high tide line left the structures outside the owners' property boundaries. (Yes, the court really did find the owners had "trespassed" on what was their own land before the change in the tide line.)
You overlook that in California the are damned if they do and damned if they don't -- they lose their land to nature when they do nothing, and they lose their land to the state if they protect it. See the Whalers Village case.