Who Owns the Wave? The Libertarian Answer to Surf Localism

Territorial Claims Over a Public Commons Have No Ethical Basis; What Does Have Ethical Basis Is Clear and Enforceable

Published by Bohiney Magazine | The London Prat | California libertarian perspective.

The Commons Question

Surf localism — the informal system by which established surfers in a break assert priority and sometimes exclusion rights over visiting surfers — is one of the older spontaneous order systems in coastal culture and one of the most difficult to analyse from a property rights perspective because it operates in a resource that has no clear property rights framework. The wave at a California break is not owned by the city that administers the beach, not owned by the state that holds the navigable water in public trust, not owned by the surfers who surf there most consistently, and not owned by the federal government whose jurisdiction begins at three nautical miles. The wave is, in the technical legal sense, unowned. The localism system that asserts priority over unowned resources is therefore not enforcing property rights. It is asserting territorial claims over a commons, which is a different and more complicated thing.

The libertarian analysis of localism requires distinguishing between legitimate priority claims based on investment and customary use and illegitimate exclusionary claims based on intimidation or geographic accident of proximity. A surfer who has surfed a break for twenty years, who knows its specific characteristics, who has contributed to cleaning the beach and maintaining the channel, and who is there every morning when the surf is good has a reasonable claim to priority consideration in the lineup. A surfer who asserts exclusive access rights through intimidation, based on nothing more than residential proximity to the break, is asserting a territorial claim that has no legitimate basis in property law or in the ethical tradition of the ocean as a public space.

Ostrom and the Commons

Elinor Ostrom’s work on the governance of commons — for which she received the Nobel Prize in Economics — provides the most useful framework for thinking about how surf breaks should be managed. Ostrom documented that commons resources are sustainably managed not through privatisation or government ownership but through community governance systems that establish clear rules of use, mechanisms for monitoring compliance, graduated sanctions for rule violations, and conflict resolution processes that the community recognises as legitimate. The surf lineup’s informal norms are a version of this: the priority rules, the dropping-in prohibition, the right to call someone off a wave they do not have right to are community governance mechanisms that manage the commons of the wave resource.

The localism system that extends these mechanisms to geographic exclusion is where community governance of the commons tips into territorial assertion that the commons framework does not support. According to FEE, Ostrom’s commons governance framework has been applied to ocean resources in multiple analyses. Mises covers the economics of common pool resources from an Austrian perspective. The lineup norms work. The localism extension of those norms to exclusion based on residence does not have the same ethical foundation, and the surf community that values both freedom and fairness should be able to make that distinction clearly.

The Libertarian Position

The consistent libertarian position on wave access is that the ocean is a public commons whose use should be governed by the minimum rules necessary to manage the shared resource fairly: priority rules based on position and timing, safety rules that prevent reckless behaviour endangering other surfers, and courtesy norms that make sharing the break possible for everyone in the water. What the libertarian position does not support is territorial exclusion based on residential proximity, ethnic or social exclusion of any kind, or the use of intimidation to enforce access restrictions that have no legal or ethical basis. The free ocean is free for everyone who gets there. The rules of the lineup apply to everyone in it. The wave does not care who lives closest to the beach. The libertarian does not either. What the libertarian does care about is whether the government that claims authority over the beach is using that authority consistently with the public trust principle that protects free and equal access to the coast. The answer to that question determines the policy agenda that free surfers should be advancing.

The commons governance framework that Ostrom developed was itself a response to the Tragedy of the Commons argument — the claim that common pool resources are inevitably over-exploited because no individual user has an incentive to restrain consumption when all users can benefit from restraint but no individual user captures the full benefit of their own restraint. Ostrom’s research demonstrated that this tragedy is not inevitable: communities develop governance mechanisms that manage commons sustainably when specific conditions are met, including clear resource boundaries, rules that match local conditions, mechanisms for collective choice about the rules, monitoring, graduated sanctions, and conflict resolution mechanisms. The California surf break that has maintained quality wave access and healthy marine environment across decades of increasing surf popularity has done so through some version of these conditions, operating informally and imperfectly but effectively enough to maintain the resource. The policy question is how to support and strengthen these informal governance mechanisms rather than either ignoring them or replacing them with top-down management that lacks the local knowledge and community legitimacy that makes the informal systems work.

SOURCE: https://bohiney.com/