[31] In 1842, the United States Supreme Court stated that all 13 original states followed the public trust doctrine. See Martin v. Lessee of Waddell, 41 U.S. (16 Pet.) 366, 410 (1842) (“For when the revolution took place, the people of each state became themselves sovereign; and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use.”) Chief Justice Taney pointed out that submerged lands had originally been “held by the king . . . as the representative of the nation, and in trust for them.” Id. at 409. New states were granted submerged lands upon statehood. Pollard v. Hagan, 44 U.S. (3 How.) 212, 229–30 (1845). A century later, the Supreme Court held that the federal government had retained tidelands along the ocean coasts of all new states. United States v. California, 332 U.S. 19, 38–41 (1947). Congress overruled this decision with the Submerged Lands Act of 1953, 43 U.S.C. §§ 1301–1356, which grants the states the ocean floor out to the three-mile limit, see 43 U.S.C. § 1312.

[32] In some cases, the public that owns the tidelands is a Native American tribe, in which case the tribe rather than the state owns those public trust tidelands today. See, e.g., U.S. v. Milner, 583 F. 3d 1174, 1190 (9th Cir. 2009).

[33] See generally Richard J. Lazarus, Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine, 71 Iowa L. Rev. 631 (1986) and Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. Chi. L. Rev. 711, 715–23 (1986).

[34]See Martin, 41 U.S. (16 Pet.) at 410; see also David C. Slade et al., Putting the Public Trust Doctrine to Work 175 & 180–81 nn.5–10 (1990) (discussing judicial limitations on the ability of states to convey public trust lands to private parties); cf. United States v. Denver & Rio Grande Ry. Co., 150 U.S. 1, 14 (1893) (“It is . . . the well-settled rule of this court that public grants are construed strictly against the grantees, but they are not to be so construed as to defeat the intent of the legislature . . . .”).

[35] See, e.g., Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471, 473 (1970) (describing an expanded public trust doctrine) and James L. Huffman, Speaking of Inconvenient Truths—A History of the Public Trust Doctrine, 18 Duke Envl. L. & Pol’y F. 1, 4–7, 37–69 (2007) (summarizing legal commentaries advocating an expanded public trust doctrine and discussing court opinions that adopted that expanded doctrine or mentioned it while basing their rulings on other grounds).

[36] The scientific and legal literature do not mean the same thing by “high water line”. Scientific papers generally mean a visually discernible line in the land made by the high water. See e.g. Elizabeth H. Boak & Ian L. Turner, Shoreline Definition and Detection: A Review, 21 Journal of Coastal Research: 690–697 (2005). Court opinions generally mean an elevation contour.  See infra note 46 and accompanying text.

[37] See e.g. Severance v. Patterson, No. 09-0387 (Tex. 2010) (“The area from mean low tide to mean high tide is called the "wet beach," because it is under the tidal waters some time during each day. The area from mean high tide to the vegetation line is known as the “dry beach.”); City of Long Branch v Liu, No A-9 (N.J. 2009) (“The mean high water mark, generally, is the boundary line that divides private ownership of the dry beach and public ownership of tidally flowed lands”); and Stephanie Reckford, Limiting the Expansion of the Public Trust Doctrine in New Jersey: A Way to Protect and Preserve the Rights of Private Ownership, 36 Seton Hall L. Rev. 249, 249 n.2 (2005)  (same).

[38] Cf. Orrin H. Pilkey, Jr. and William J. Neal, editors, Living with the East Florida Shore 25–28 (1984) (explaining that storms erode the beach and dunes by washing sand offshore, but that after the storm subsides, fair-weather waves rebuild the beach and dunes). The vegetation line tracks the inland reach of the most severe storm of the year, because recently eroded dunes and beaches typically lack vegetation until the next year. Id. at 25.

[39] See e.g. Boak & Turner at 690 (showing that the divide between wet and dry land is inland of mean high water).

[40] The more common terms in the scientific literature are “high water line” and “wet/dry line.” See e.g. Boak & Turner at 690–697 (finding that the most commonly used shoreline reference had been the “high water line”, which is sometimes called “wet/dry line”).   But “high water line” could easily be confused with “mean high water line” or “high tide line,” which are based on surveyed elevations. See supra note 36 and accompanying text. The term “wet/dry line” has been criticized as imprecise. Id. at 697.

[41]Maurice W. Provost, Tidal Datum Planes Circumscribing Salt Marshes, 26 Bulletin of Marine Science 583 (1976) (explaining that low marsh extends up to mean high water, while high marsh extends up to unusually high tides).

[42]  See, e.g., T.J. Huisman, F. Van Langevelde, & W.F. De Boer, Local positive feedback and the persistence and recovery of fringe Avicennia marina (Forssk.) vierh. Mangroves 17 Wetlands Ecol. Manage. (2009) 601, 603 (citing W.F. De Boer et al., 428 Hydrobiol 187–196 (2000) and P.J. Hogarth, The Biology of Mangroves. (1999)).

[43] See Slade et al, supra note 34, at 59 & 64 n.8 (listing cases from all 23 tidewater state courts defining the landward boundary of the public trust).

[44] See, e.g., Frank E Maloney & Richard C Ausness, The Use and Legal Significance of the Mean High Water Line in Coastal Boundary Mapping, 53 N.C. L. REV. 186, 204 (1974); and George M Cole, Tidal Water Boundaries Symposium on Sovereignty Lands, 20 Stetson Law Review 165, 166 (1990).

[45] See generally Charles E. Corker, Where Does the Beach Begin, and to What Extent Is This a Federal Question, 42 Washington Law Review 33 (1966). 

[46] Borax Consolidated, Ltd et al. v. Los Angeles, 296 U.S. 10 (1935). The Court’s analysis focused on the distinction between neap high tide, mean high tide, and spring high tide and held that the ordinary high water mark referred to the average high tide. The opinion did not address the question whether wave runup causes an actual water mark but simply asserted “This does not mean, as petitioners contend, [that the ordinary high water mark is] a physical mark made upon the ground by the waters; it means the line of high water as determined by the course of the tides,” id. at 23, and cited opinions that distinguished various tide levels. Id,  but did not address wave runup or actual water marks. The case involved Mormon Island within Los Angeles Harbor, id. at 12, where wave runup is not significant. Thus the holding did not necessarily create a rule of law that federal grants extend to the mean high water line when there is significant wave runup. But a few federal courts have assumed that Borax created such a rule along the ocean coast. See e.g., U.S. v. Washington, 294 F. 2d 830, 834 (9th Cir. 1961) (“the high-water mark means the line of high water as determined by the course of the tides, not as determined by physical markings made upon the ground by the water. The latter method of making this determination, which was followed by the district court, is appropriate only in the case of streams and other nontidal waters which have no absolute ascertainable level because of variations of flow from a multitude of causes.”) and Sotomura v. County of Hawaii, 460 F. Supp. 473, 478–479 (D. Haw. 1978) (relying on Borax and U.S. v. Washington). Several courts have stated in passing that Borax implies that federal grants extend to mean high water along an ocean shore, while deciding cases that do not depend on whether it does or not. See e.g. Hay v. Bruno, 344 F. Supp. 286, 287 (D. Or. 1972); California ex rel. State Lands Comm'n v. United States, 457 US 273, 289 (1982) (J. Rehnquist, concurring); U.S. v. Alaska, 521 US 1, 23–25 (1997); and Udall v. Oelschlaeger, 389 F. 2d 974, 975–976 (D.C. Cir. 1968).

[47] Some courts have defined “ordinary high water mark” as the mean high tide line without providing a reason or indicating a recognition that the mean high tide line is not a water mark along ocean shores. E.g. O'Neill v. State Hwy. Dept., 50 N.J. 307, 323–324 (1967); Purdie v. Attorney General, 143 N.H. 661, 664–667 (1999); and State v. Fain, 259 S.E. 2d 606 (S.C. 1979). Some adopt the rule because (ignoring shore erosion) the mean high tide line can be determined more precisely than the visual observation of a water mark. State v. Ibbison, 448 A.2d 728, 732 (R.I. 1982) (public access case) “The mean-high-tide line represents the point that can be determined scientifically with the greatest certainty”. Ibbison at 732. Another common reason has been that the litigants had asked the court to choose between the mean high tide line and either a watermark or vegetation mark that was created by spring high tide, or the annual storm tide that generally defines the dune vegetation line; neither litigant proposed the line of ordinary wave runup as the ordinary high water mark. E.g., Purdie at 664–665 and Carolina Beach Fishing Pier, Inc. v. Town of Carolina Beach, 177 SE 2d 513, 516 (N.C. 1970) (takings case). Finally, courts sometimes pointed to older cases involving calm waters where the ordinary high water mark and the mean high tide line were the same, to conclude that the law had already settled on the use of the mean high water line. Ibbison at 730–31. The academic literature on these cases has also focused on increased sophistication of measuring mean high water but not on the higher actual water levels caused by wave runup.   E.g., Maloney & Ausness, supra note 44, at 206 and Cole, supra note 44, at 165–167.

[48] Luttes v. State, 324 S.W. 2d 167, 191–192 (Tex. 1958) (holding that Spanish and Mexican grants extend only to the line of mean higher high tide, while later grants extend to the mean high tide line).

[49] Id. at 192.

[50] See infra note 60.

[51] La. Civ. Code Ann. Art. 451 (West 1980) (“Seashore is the space of land over which the waters of the sea spread in the highest tide during the winter season”). For Texas, see supra note 48. But see Adams v. Crews, 105 So.2d 584, 593 (Fla. Court of Appeals 1958) (holding that private rights extended only to the high water mark under both English and Spanish Law). 

[52] In re Ashford, 440 P.2d 76, 77 (Haw. 1968) (defining seaward boundary of private land as “the upper reaches of the wash of waves, usually evidenced by the edge of vegetation or by the line of debris left by the wash of waves”); Hughes v. State, 67 Wash. 2d 799, 811 (1966)  (defining mean high tide line as the vegetation line and denying landowners the benefits of accretion). But cf. Hughes v. Washington, 389 U.S. 290 (1967) (holding that federal law, which sets the boundary at the mean high tide line, governs in the case of federal grants).

[53] See, e.g., Trustees of Internal Improvement Fund v. Wetstone, 222 So.2d 10 (Fla. 1969).

[54] In Delaware, Pennsylvania, and Virginia, private land extends down to mean low water. See Slade et al, supra note 34, at 69–70. n.22 (citing cases). In Maine and Massachusetts, private land extends to mean low water or 100 rods (1650 feet) seaward of the mean high water line, whichever is more inland. Id. at 70 (citing cases).

[55] E.g., Borough of Neptune City v. Borough of Avon-By-the-Sea, 294 A.2d 47 (N.J. 1972) (discussing borough-owned beach while acknowledging that the source of the title was not in the record); and Dept. of Natural Resources v. Ocean City, 274 Md. 1, 7 (1975) (discussing beach dedications and implied dedications).

[56] See the discussion of avulsion in infra § 2.2.2.

[57] Florida’s Riparian Act of 1856 transferred title of submerged lands to any riparian owner who filled those lands and made improvements “to fill up from the shore, bank or beach as far as may be desired … to erect warehouses or other buildings.” Theisen v. Gulf, F. & A. Railway, 75 Fla. 28, 78 So. 491 (1917). The Butler Act of 1921 extended those grants to include some lands that had not been filled, such as the land under a dock. Jacksonville Shipyards v. Dept. of Natural Resources, 466 So.2d 389, 391–392 (Fla. 1985). Many developers took advantage of this statute by creating waterfront communities on what had been wetlands and shallow waters. See, e.g., G.A. Antonini, D.A. Fann, & P. Roat, Florida Sea Grant, A Historical Geography of Southwest Florida Waterways Vol. 1 and 2 (2002) (pictures, maps, and a discussion of the historic conversion of shallow estuaries and coastal wetlands to dry land for development). See also Hayes v. Bowman, 91 So.2d 795 (Fla. 1957) (reconciling the history of dredge-and-fill developments to the public trust doctrine in Florida).

[58] See Matthews v. Bay Head Improvement Ass'n, 471 A.2d 355, 358 (N.J. 1984) (expanding the public trust inland along the ocean by recognizing a right to sunbathe and otherwise enjoy the dry beach between mean high water and the vegetation line) and State ex rel. Thornton v. Hay, 462 P.2d 671, 672–74 (Or. 1969) (under the doctrine of custom, public access extends inland to the 16-foot contour, which is similar to the dune vegetation line).

[59] Slade et al, supra note 34, at 49–50 n.61 (listing cases for each of the five states).

[60] See the references listed in supra notes 44–47. Uncertainty remains about whether the public access extends farther inland than mean high water, for two reasons. First, court opinions have not yet addressed the paradox of the law requiring modern survey techniques to implement a centuries-old doctrine of property law, while scientists continued to rely on visual observation methods that have always been available. See supra notes 36, 39, 40, 46, and 47. It is therefore possible that for uses that depend on the visually observable shore, future cases in some states will clarify that the public easement is defined by readily observable boundaries, even where land ownership boundaries are based on surveys. Second, there is no clear rationale for basing public access on the mean high tide line along beaches where pedestrian passage is regularly infeasible along the mean high tide line, given that the actual water mark defines a path where pedestrian passage is feasible.

[61] Slade et al, supra note 34, at 197–199 nn. 39–40 (listing cases for 9 coastal states). 

[62] See infra § 3.1.2.2 (discussing Texas Open Beaches Act) . Longstanding use has entitled the public the right of access along beaches both due to the doctrine of custom and the doctrine of proscription.  Tex. Nat. Res. Code § 61.011. Many of these beaches have eroded since the public originally obtained those rights. Although the public access way does not necessarily migrate inland to the new dry beach as the shore erodes, see infra note 88 and accompanying text, the public can independently obtain access to the new beach (which was formerly dune) through continuous use.   Severance v. Patterson, No. 09-0387 (Tex. 2010). No one has quantified the portion of public beaches in Texas where access has been lost.

[63] See, e.g., City of Daytona Beach v. Tona-Rama Inc., 294 So.2d 73, 78 (Fla. 1974) (holding that in the particular area under consideration, the public had an easement to the privately owned dry sand beach based on the doctrine of custom).

[64] See, e.g., U.S. Army Corps of Eng’rs, Digest of Water Resources Policies and Authorities 14-1 (1996) (explaining that Public Law No. 84-826 authorized federal erosion control assistance only for publicly owned shores, or for private shores if such protection would result in public benefits).