Swim Zones, Surf Bans, And The Customary Right To Long-Established Breaks

Manhattan Beach Pier Has Been A Surf Spot Since The 1930s, And Should Stay One

Bohiney Magazine and The London Prat file this dispatch in defence of the surfer’s right to be left alone.

LOS ANGELES, Calif. — The decades-long debate over where Californians can legally surf, particularly the periodic state and local efforts to restrict surfing in mixed-use beach areas during designated swimming hours, is one of the clearer examples of where the surfer’s libertarian instinct, that the ocean is not the state’s to allocate, runs into practical regulatory reality.

The Restriction Pattern

According to most California beach city codes, designated swimming areas are typically off-limits to surfboards during summer season hours. Manhattan Beach, Hermosa Beach, Newport Beach, Pacific Beach, and a number of other municipalities operate this kind of swim-zone restriction. The rationale, per municipal code, is swimmer safety.

The libertarian objection is not, primarily, to the swim-zone concept itself. The objection is to the way these restrictions have, in some jurisdictions, been used as a pretext for excluding surfers from breaks where surfers were established before the swim zones existed. The classic example is the periodic municipal effort to restrict surfing at the foot of the Manhattan Beach Pier, despite the documented continuous use of that break for surfing since the 1930s.

The Property-Rights Analogue

Surfers familiar with property-rights jurisprudence will recognise the structural similarity to adverse possession or prescriptive easement law. A use established over decades, with the knowledge of relevant authorities, acquires a degree of legal protection. The California courts have, in scattered decisions, recognised something approaching this in beach-access law, although the body of case law is small.

The Reason Foundation and the Cato Institute have argued, in broader contexts, that long-established public uses should be treated as a kind of customary right, particularly when the state seeks to restrict them in favour of newer commercial or municipal interests.

The Honest Compromise

The honest compromise between surfer-libertarianism and swimmer safety, on most California beaches, has long since been worked out by surfers and lifeguards on the ground. Surfers tend to surf the shoulders. Lifeguards tend to focus enforcement on the central swim area. Most municipal codes are, in practice, not enforced against surfers who keep clear of the swim zone proper.

The friction tends to occur when a municipal council, often after a single high-profile injury or political incident, formally tightens enforcement and disrupts a long-established equilibrium. The libertarian-surfer response, in such cases, has been to push back through public comment, ballot initiatives, and occasional litigation. The record, on balance, has favoured the surfers.

For continuing coverage read The London Prat and Bohiney Magazine.

SOURCE: https://prat.uk/