Extreme Temperature Diary-April 26, 2018/ Topic: Land to Ocean Litigation

Thursday April 26th… Dear Diary. The main purpose of this ongoing post will be to track United States extreme or record temperatures related to climate change. Any reports I see of ETs will be listed below the main topic of the day. I’ll refer to extreme or record temperatures as ETs (not extraterrestrials)😊. Here is today’s main climate change related topic:

Land to Ocean Litigation

As of 2018 we are starting to see real, concrete climate change affect society. Imagine that you own beach front property that has been in your family for generations since the mid 20th century. Now imagine that the bulk of this land has gone underwater starting in the early 21st century because of climate change. Let’s say that people are catching fish in the sea that was once your land. Do you  own those fish swimming on top of what used to be your sandy beach? On top of the fishy issue can the state take your land because it is now underwater? In Louisiana, which is one of the first coastal states facing the consequences  of sea level rise, these and other legal questions are already being asked. This Inside Climate News article is a fascinating read:


Personally I think it would only be fare if I were compensated for any valuable thing taken from  property that is now below water like seafood. Also, I would want to be compensated for my land loss since others were responsible for it being inundated due to carbon pollution. But would I have any legal rights? Here is a quoted snippet from the article:

One April morning in 2016, Daryl Carpenter, a charter boat captain out of Grand Isle, La., took some clients to catch redfish on a marsh pond that didn’t use to exist. Coastal erosion and rising seas are submerging a football field’s worth of Louisiana land every hour, creating and expanding ponds and lakes such as the one onto which Carpenter had piloted his 24-foot vessel.

Suddenly, another boat pulled up beside Carpenter’s. “You’re trespassing,” the other driver declared, before chasing him and his clients down the bayou. The sheriff’s office later threatened to arrest Carpenter if he ever returned to the pond. There was just one problem: Under Louisiana state law, any waterways that are accessible by boat are supposed to be public property, argued Carpenter—even what was previously unnavigable swampland.

Carpenter sued the sheriff, as well as Castex Energy Inc., which owns the property around the pond, for interfering with his business. A district court decided against him in March, noting that an earlier ruling found that the territory was unnavigable swampland when the state sold it into private ownership in the 1800s. Carpenter is appealing that ruling.

Carpenter’s suit reflects a legal and political dilemma that’s beginning to reverberate around the country: As seas rise and coasts wash away, who owns the land that goes underwater? Versions of that debate are taking place in courtrooms, legislatures, and government offices, raising the question of whether and when climate change justifies seizing private property. The stakes are enormous, affecting not just ownership of offshore mineral and fishing rights but also potentially trillions of dollars of coastal real estate.

The issues facing all coasts worldwide this century will be nearly insurmountable. Before reading the Bloomberg article the issue of property rights didn’t register in my old noggin. Now the term “property going underwater” has an all new literal meaning, unfortunately. Continuing from the article: 

“There’s no question it will be a huge fight,” says Holly Doremus, a law professor at the University of California at Berkeley who specializes in environmental law. “We don’t exactly know the boundaries of what the state can do.” For centuries, a body of law called the public trust doctrine has stipulated that, when it comes to coastal property, anything below the average high-tide line is owned by the government for the use and benefit of the public. Those rules also cover what happens when the high-tide line moves. If that movement happens suddenly—for example, if a portion of beach is washed away by a storm—the land owner retains title to the property provided he or she restores it to dry land. 

By contrast, if the high-tide line moves slowly, state ownership moves with it. And because it’s Mother Nature taking the land, not the government, there’s no legal requirement for the government to compensate property owners. Legal scholars say climate change has scrambled that distinction. “How do you characterize sea level rise? Is it fast or slow?” asks Josh Eagle, a University of South Carolina professor who specializes in coastal law. “Those rules don’t really make as much sense anymore.”

The article goes into the sticky issue of governments being required to buy out land from owners along  the coast. Some governments, like those from the article in Nags Head, North Carolina simply don’t have the funds. Also, should owners be required to pay property taxes on land that has gone underwater? Along the Gulf Coast, which was part of the Old South, there remains a culture of believing in strong property rights. Those with coastal property in the southern U.S. are going to put up quite a fight.   

Well, it looks like lawyers will be the big winners here since there are so many pressing legal questions to be sorted out. The property issue is one of adaption to climate change as sea level rise accelerates this century. Whole towns and cites will have to pull back from the ocean and rebuild inland. Hopefully this can be done reasonably and justly moving forward.


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The Climate Guy




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