Full document / COSOC-W-86-002 - the National Sea Grant Library
Full document / COSOC-W-86-002 - the National Sea Grant Library Full document / COSOC-W-86-002 - the National Sea Grant Library
occurs because a negligent Inspection Is not In compliance with the terms and conditions of the permit. There are certain risks involved in construction and maintenance stages that should be considered in planning a reef. The area Involved and the type of material used must be matched so that the materials are suitable, a requirement of the NFEA. Materials must also be free of pollutants in order to meet the suitability requirement. If a state or one of Its political subdivisions (a county or municipality) is the permittee, it may be able to assert the doctrine of sovereign immunity. The immunity, if applicable, is absolute and will operate to defeat the claim of the Injured party. States are generally Immune from all types of negligence actions, although state officials have only a limited privilege of individual immunity. In the typical reef scenario, Individual official actions can be divided into those that arc discretionary in nature and those that are ministerial. Discretionary decisions are normally covered by Immunity, while nlnlsterlal actions are not. Discretionary decisions would Include the initial decision to construct a reef and the choice of location and materials. Ministerial actions would Include the placement of the materials and the maintenance of the reef, including negligent inspections. The Immunity of a county or municipality of a state is derivative, and therefore is not as strong as the state's Immunity. Sovereign immunity can be explained by characterizing the actions of such entities as governmental or proprietary. Governmental actions are generally those considered to be necessary to the public welfare, while proprietary actions are those not actually necessary, even though they do benefit the public. An artificial reef would fall in the latter category. Thus, in those Instances where a permittee is not protected by the provision concerning actions required to bo undertaken by the permit, normal rules of negligence apply. Sovereign inounlty is one defense that may be available, a strong defense In the case of a state as the permittee, but a weaker possibility when a county or city is the permittee. 603
Estuarineand Coastal Management- Tools of the Trade. Proceedingsofthe TenthNationalConference of The Coastal Society. October 12-15.1986. New Orleans. LA. Copyright by The Coastal Society 1987. Introduction PUBLIC RIGHTS IN COASTAL LANDS: USING COMMON LAW THEORIES TO GUARANTEE PUBLIC ACCESSTO MISSISSIPPI'S BEACHES M. Casey Jarman Coastal and Marine Law Research Program Universityof MississippiLaw Center University.MS 38677 Stanton Fountain Auomey-at-Law P.O. Box 541 Bikni. MS 39533 As part of efforts to control development of Mississippi's beaches and provide the public with recreational access, the Mississippi Bureau of Marine Resources is developing a sand beach master plan for Harrison and Hancock counties. One of the issues identified during the course of the study is public access to beaches. Ostensibly, beach access for the public in Harrison County was guaranteed in 1970 by Judge Cox's final order in U.S. v. Harrison County. Two subsequent U.S. Supreme Court decisions, as well as a conflicting Mississippi Supreme Court ruling on the same beach, have rendered the applicability of the 1970 ruling suspect. No similar case law applies to beaches in Hancock county. As a result, the extent of public legal rights to use these beaches is unclear. Continued controversy over public use of the beaches of Deer Island further Illustrates the problem of beach access. Deer Island is a 500-600 acre Island located in the Mississippi Sound, just offshore from the coastal city of Blloxl. A private developer has attempted to restrict public access to all put a small portion of the Island that is owned by the city of Blloxl. Prior to tha developer's acquisition of the property, the public freely used the island for boating, swimming, cooping, and other recreational uses without interference. As a result, an uneasy tension now prevails over public recreational use of Deer Island beaches. This paper reviews the current status of Mississippi's public trust doctrine on public access to coastal beaches. In addition, alternative cocnon law theories of dedication and custom are offered to support the right of public access. 605
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Estuarineand Coastal Management- Tools of <strong>the</strong> Trade.<br />
Proceedingsof<strong>the</strong> Tenth<strong>National</strong>Conference of The<br />
Coastal Society. October 12-15.19<strong>86</strong>. New<br />
Orleans. LA. Copyright by The Coastal Society<br />
1987.<br />
Introduction<br />
PUBLIC RIGHTS IN COASTAL LANDS:<br />
USING COMMON LAW THEORIES TO GUARANTEE<br />
PUBLIC ACCESSTO MISSISSIPPI'S BEACHES<br />
M. Casey Jarman<br />
Coastal and Marine Law Research Program<br />
Universityof MississippiLaw Center<br />
University.MS 3<strong>86</strong>77<br />
Stanton Fountain<br />
Auomey-at-Law<br />
P.O. Box 541<br />
Bikni. MS 39533<br />
As part of efforts to control development of Mississippi's beaches and<br />
provide <strong>the</strong> public with recreational access, <strong>the</strong> Mississippi Bureau of<br />
Marine Resources is developing a sand beach master plan for Harrison<br />
and Hancock counties. One of <strong>the</strong> issues identified during <strong>the</strong> course<br />
of <strong>the</strong> study is public access to beaches. Ostensibly, beach access for<br />
<strong>the</strong> public in Harrison County was guaranteed in 1970 by Judge Cox's<br />
final order in U.S. v. Harrison County. Two subsequent U.S. Supreme<br />
Court decisions, as well as a conflicting Mississippi Supreme Court<br />
ruling on <strong>the</strong> same beach, have rendered <strong>the</strong> applicability of <strong>the</strong> 1970<br />
ruling suspect. No similar case law applies to beaches in Hancock<br />
county. As a result, <strong>the</strong> extent of public legal rights to use <strong>the</strong>se<br />
beaches is unclear.<br />
Continued controversy over public use of <strong>the</strong> beaches of Deer Island<br />
fur<strong>the</strong>r Illustrates <strong>the</strong> problem of beach access. Deer Island is a<br />
500-600 acre Island located in <strong>the</strong> Mississippi Sound, just offshore<br />
from <strong>the</strong> coastal city of Blloxl. A private developer has attempted to<br />
restrict public access to all put a small portion of <strong>the</strong> Island that is<br />
owned by <strong>the</strong> city of Blloxl. Prior to tha developer's acquisition of<br />
<strong>the</strong> property, <strong>the</strong> public freely used <strong>the</strong> island for boating, swimming,<br />
cooping, and o<strong>the</strong>r recreational uses without interference. As a<br />
result, an uneasy tension now prevails over public recreational use of<br />
Deer Island beaches.<br />
This paper reviews <strong>the</strong> current status of Mississippi's public trust<br />
doctrine on public access to coastal beaches. In addition, alternative<br />
cocnon law <strong>the</strong>ories of dedication and custom are offered to support <strong>the</strong><br />
right of public access.<br />
605
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