Lines in the Sand: America’s Public Beach Crisis

Small burrowing animals of all sorts emerged from holes all over the country to celebrate Groundhog Day Feb. 2. While the most famous — Pennsylvania’s Punxsutawney Phil — forecasted six more long, cold weeks of winter, last week’s short blast of warm weather evoked thoughts of spring, summer and — of course — the beach.

Public beaches are one of Chicago’s crown jewels, providing citizens with an escape from the spring and summer heat, easily accessible by one of America’s best public transit systems.

Chicago, although 800 miles from the nearest ocean, is blessed with some of the country’s greatest beaches — at least according to GQ.

Not only that, but the intersection between the city’s skyline and the shoreline creates a striking visual, linking the city’s aquatic playground to the vitality of downtown.

Yet while Chicagoans are always free to soak up the sun, public beaches around the country — and around the world — are under increasing pressure.

In the last few years, beaches on every coast have been threatened — from California and New Jersey to Puerto Rico and Hawaii.

Nominally, beaches across the entire country — and the public’s right to access them — are protected by law, derived from some of the oldest pillars of the American legal system.

American law is based on English common law inherited from the United Kingdom pre-independence. Based on this system, natural public spaces like waterways are considered to be held in public trust, or set aside for the collective benefit of everyone — a right entrusted to the legal system to protect for all in perpetuity.

Under the landmark 1894 Supreme Court decision Shively v. Bowlby, public trust doctrine was officially adopted into U.S. jurisprudence from the English system, but its roots go back even further than the colonial era.

The doctrine’s form under the English legal system was itself taken from much earlier Roman civil law, which gave the public access to running water, the sea and seashores, according to Loyola Law Professor Henry Rose.

Despite being rooted in the colonial systems of Rome, England and American Manifest Destiny, the public trust doctrine has helped save pristine natural land from destruction and private ownership for centuries, incorporating strong protections for everything from boating to fishing to casual recreation.

The doctrine finds similarities with other legal codes, like Hawaiians’ legal right to ocean access, which dates back to the state’s time as an independent kingdom. Together with the federal standard, these laws have kept beaches publicly accessible for decades.

In fact, every coastal state has some form of public beach protection law — derived from public trust doctrine — but enforcement varies across the country.

Six states — Oregon, Washington, Texas, Maryland and North Carolina — have an enshrined right of access to both “wet” and “dry” beaches, according to the Surfrider Foundation. This gives citizens a right to use the entire width of a beach right up to the average high tide line — the typical extent of a beach’s wet sand.

Another 16 states, including Illinois, have established “wet beach” rights, but only below the high water mark. The remaining seven coastal states only protect access below the average low water mark — essentially protecting access to only the water itself.

It’s only legal to fully own the shoreline down into the water in Maine and Massachusetts, but even there the law preserves public access for activities like hunting and fishing.

Despite these laws and a long history of court decisions attempting to protect them, the public’s right to shoreline access has come under heavy attack from landowners and attorneys, adding to the dangers already brought on by climate change and rising sea levels.

The growing wave of privatization and blocking of beach access garnered mixed responses — and mixed results.

In California, billionaire attempts to illegally wall beaches off have failed in the courts. But there and in other states, attempts to skirt the law by gating off — not technically blocking — public access have caused the nation’s truly public beaches to become even fewer and farther between.

In both Hawaii and Puerto Rico, residents have successfully fought back against seaside encroachment by wealthy landowners and corporations, with some communities literally tearing down illegal walls to keep public beaches public.

In the drafting of the 1909 Burnham Plan — which helped shape the look and layout of modern Chicago — Director of Works Daniel Burnham announced the city’s protection of the public’s entrusted beachfront rights.

“The Lakefront by right belongs to the people,” Burnham said.

Since then, the city has kept that promise.

Thanks to the Chicago public access protections of the last century and the Chicago Parks Department extending public beach access to nearly the entire length of the city’s shoreline, there’s no risk of privatization for the city’s beaches.

But the same can’t be said for other cities, or for Illinois neighbors on the Lake Michigan shoreline.

For now, shorefronts all across America still belong to the people — but that doesn’t mean we won’t have to fight to keep it.