An hour before sunset, and several weeks before the pandemic hit, I walked south along Siesta Key’s Turtle Beach until I found myself in front of the sea oat fields that veil the multimillion-dollar waterfront mansions of north Casey Key. There, a security guard dressed in black waited for me where the wet sand met the dry.

“What are you doing here?” he asked.

“I’m just out for a walk.”

“Are you a resident of Casey Key?”

“No.”

“Well, the thing is, this beach is private property, and if you wanna be here, you gotta be in the water.”

Another man appeared out of the sea oats and walked up to us. He was the head of security. He explained that the private property reached all the way to the “mean high water line.”

“What’s that?” I asked.

“It’s the line that divides the public beach from the private. It’s based on a 19-year average of the high tide.”

I didn’t understand, but asked him where, exactly, this mean high water line was, and where I was allowed to walk. He pointed out to the Gulf of Mexico.

“The line is about 20 feet into the water,” he told me. I figured I’d be in about waist-high water if I waded out that far.

“What happens if I stay on the beach?”

“We will call the police. We’ve had the police arrest people for not respecting private property many times.”

I took them at their word, turned around and left.

It didn’t sit well with me. Born and raised in Sarasota, I believe the beaches are my birthright. Already, 60 percent of Florida’s coastline is in private hands; in Sarasota County, it’s 80 percent, according to a 2014 beach access study commissioned by Sarasota County. After Covid-19 began to spread and the county’s public beaches closed, my ability to freely walk our remaining 20 percent of coastline went to zero. I went home and looked into the public’s right to the beach. It turns out that the line in the sand between what is public and what is private beach is blurry at best. This is a big deal. Most Floridians—and our visitors—have no idea that their ability to stroll our beloved beaches is in jeopardy.

In my quest for this mysterious boundary, I found myself in a Kafkaesque tale of bad legislation, arcane customary use laws, a complicated and inscrutable formula for determining the mean high water line, confused law enforcement and elected officials who aren’t paying—or won’t pay—attention.

I wasn’t the only beach patron looking for answers. For nearly 25 years, Kansas City residents Linnea St. Johns and her husband, Dave, walked this length of beach at Casey Key without incident. They own a condo on Turtle Beach and come here every winter. “Everything was fine until about two years ago,” St. Johns says. “Then this new mansion got built and they put up a sign. Since then, security guards sit and wait for people and tell them to leave.”

St. Johns also looked into her legal rights. She’d read in the Florida Constitution, (Article X, Section 11), that every part of the beach seaward of the mean high water line is owned by the public. The sandy part of the beach above this line, if it’s not public beach, is usually private. Most Floridians have understood this as the “wet sand/dry sand” law. In other words, every part the water touches is public while dry sand is private.

But that’s not how the security guards saw it. St. Johns told me about a walk she and her husband took last winter.

“We were ankle-deep in the water and the security guard said we needed to be at least knee-deep,” she says. “He asked us our names and said that if we were picking up shells from the beach then we were stealing the homeowner’s property. It hasn’t been this way in all the years we’ve been coming here, and suddenly it’s like that?”

What changed, according to advocates for public beach access, was House Bill 631—now Florida Statute 163.035, also known as the “Establishment of Recreational Customary Use”—that Gov. Rick Scott signed into law in the spring of 2018. The law, introduced by a Democratic legislator, passed with overwhelming bipartisan support, including a thumbs up from every one of Sarasota’s elected representatives.

Sarasota state Rep. Margaret Good says she and other elected officials saw the bill as innocuous at the time, since it simply established a “uniform legal process for local governments to expand access to beaches.” But the real impact has been damaging for anyone who wants to grab a towel and lie in the sand. HB 631 makes it more difficult for local governments to establish the public’s rights to the beach. What this “uniform legal process” does, say legal experts, is impose new procedural requirements on local governments.

“This puts the thumb on the scale for landowners,” says Alyson Flournoy, a professor at the University of Florida who specializes in property, administrative and environmental law. “The determination of customary use rights is already inherently difficult. [The new law] makes it harder for local government to resolve that controversy in a way that can preserve public rights.”

Previously, local governments could pass customary use ordinances to grant the public’s existing rights to historically used beaches without having to go to court. If beachfront property owners disputed the existence of customary use in the area, they had to go to court to seek a judicial resolution. Now, the opposite is true. Local governments have to jump through time-consuming and expensive procedural hoops, often battling the wealthy and well connected to make their case.

The bill immediately turned out to be a nightmare for Scott, who was accused of privatizing Florida’s beaches. News stories like “Banning the Beach” in Florida Politics and “Beach Use Battle at Fever Pitch” in the Gainesville Sun sprang up across the state. Videos of confused police officers kicking people off Florida beaches while unable to explain the law to beachgoers went viral. Scott tried to backtrack with an executive order that claimed to overturn the new law, but he has almost no power over how county governments administer customary use.

For now, Gulf-front property owners are using the confusion over customary use to their advantage, and they are hiring private surveyors to use the 19-year-old mean high water line to mark off their property, putting up “No Trespassing” signs and calling the police. Until a court rules or a new law is passed that clarifies customary use, it’s not clear where the line in the sand should be drawn.

Since the fall of 2019, the sliver of sand at Siesta Key Public Beach Access No. 1, better known as Shell Road Beach, has become the epicenter of Sarasota’s fight over who owns the beach. Gulf-front homeowners Michelle and Greg Olson, who moved from Nebraska, bought the property three years ago for $3.5 million and were told by police that the area had a low crime rate. “You move to a nice neighborhood, you figure that there’s law-abiding citizens there,” she told me.

Instead, she says people have used her beach as their own private toilet where she finds “poopy pants” left in her bushes, and as a place to have sex and do drugs. She and her husband have called the police more than 100 times and have videotaped some beachgoers. “How would you like it if you found needles and crack pipes in your back yard? These criminals were used to coming down here and committing crime and getting away with it,” she told me.

Christina Holmes was first kicked off Shell Road Beach in October 2019 by a police officer when she walked along the water. Holmes, who had been visiting this beach for 30 years, and had never before been asked to leave, thought she knew the law. “I said we had a right to walk along the beach and told him about the customary use definition in the Florida Constitution. He was completely unaware of the laws. He said he was told this was private property, not public. I asked him, ‘Who told you?’ He said, ‘The homeowner.’”

But even with the police on their side, the Olsons were fed up with beachgoers on the sand in front of their home. In January 2020, Michelle took matters into her own hands. She hired a private surveyor to stake out her mean high water line and then put up large “No Trespassing” signs warning the public that they were on camera and would be prosecuted to the fullest extent of the law. (Criminal trespassing is a second-degree misdemeanor punishable by up to 60 days in jail. If someone’s in the house when you trespass, it’s a first-degree misdemeanor, punishable by up to one year in jail.) Then she roped off a portion of the beach and constructed a barrier out of concrete boulders, forcing the public to walk in the water to get to the other side.

Locals did not take kindly to the change. On the Friends of Shell Road Beach Facebook page, people began posting that this little piece of Gulf-front coastline, because of the short distance to the water, is the only beach their elderly or disabled family members can access. People ignored the Olsons’ warnings, got into verbal confrontations with the homeowners, walked over the ropes and occasionally vandalized and knocked over the signs.

Sarasota County officials ordered the Olsons to remove the rope and wooden poles because the structures went beyond the Gulf Beach Setback Line, which is yet another permitting layer established in 1978 to protect Sarasota County beaches from environmental degradation. This set-back line is farther from the water than the mean high water line. If the Olsons wanted to put anything seaward of the setback line, they would have to apply for a permit.

Meanwhile, Sarasota County officials continue to enforce the mean high water line, telling people they cannot walk on what the Olsons claim is their private property. That line, however, is as problematic as the customary use concept.

According to the  National Oceanic and Atmospheric Administration (NOAA), the mean high water line (also known as MHWL or mean high tide line, MHTL) is the mean average of all the high tides occurring over a 19-year period, called the National Tidal Datum Epoch. The current tidal datum used today by surveyors to determine the MHWL covers the period 1983-2001, which means it should be updated pretty soon.

There are lots of critics of this methodology, but for Bill Merrill, the Olsons’ attorney, it’s cut and dried. “The law in Florida is very clear,” he told me. “What’s unclear is with the people in the public who believe what anyone says on Facebook. The public talking about wet sandy beach, that’s not what the law is.” Merrill says that the Olsons had their property surveyed and it reaches 40 feet past their fence, including parts of the sand that get wet.

“It didn’t have come to this, but a lot of these people are just acting like animals,” he says. “They’re just rude and nasty.”

Professor Flournoy disagrees that the law is clear. “I’m very skeptical of landowners when they say they know where the mean high water line is,” she says. Property lines of coastal boundaries are unlike traditional surveyed property lines because they are not fixed. Anyone who regularly walks their favorite beach knows this. The beach shrinks, expands and changes shape in response to storms, sea level rise and manmade structures like seawalls and jetties.

“It’s hard to know where the MHWL and property boundary are,” Flournoy says. “If anything, because of coastal erosion, the MHWL and property boundary move further inland, not further out to sea. So [property owners] are losing land, and more land is becoming sovereign. Chances are the public has rights even farther onto the dry sand.”

While private surveyors may determine the MHWL for landowners, Flournoy says, “It’s not an official determination.”

Flournoy says whenever the new National Title Datum Epoch is published, which could be as soon as this year, it could make a private surveyor’s conclusion wrong. “The MHWL could be different as soon as they publish the new standard,” she says, adding that the upcoming measurement will most likely give the property owner less beach.

Meanwhile, law enforcement sees these private surveys as de facto official. “I’ve been policing around this coast for 30 years and it’s always been an issue where the MHWL is,” Colonel Kurt A. Hoffman of the Sarasota County Sheriff’s Department told me. “It’s three o’clock in the afternoon, the tides are changing. How the deputy is supposed to determine the [MHWL] has always been a little dicey.” But these recent surveys commissioned by beachfront property owners offer an intelligible guideline, he says. “From my point of view that makes the best case to get some type of legal determination.”

The 12th Judicial Circuit State Attorney’s Office didn’t add any clarity. Even though prosecutors are charging people with criminal trespassing under the statute, Chief Assistant State Attorney Craig Schaffer referred me back to law enforcement for an understanding. With this amount of ambiguity, I thought, it’s understandable that Michelle Olson believes that the beach is her property and can show law enforcement that she used a qualified surveyor to kick people off the beach, even if the sand is wet.

Professor Flournoy finds this troubling. Law enforcement could be wrongly taking the side of the landowner by using the MHWL as a legal boundary. Not only is the MHWL arbitrary and subject to change, she says, but enforcing the MHWL does not take into account Florida’s 46-year-old “customary use” law, the very same concept that HB 631 was supposed to clarify and has ended up making more difficult to prove.

The Florida Supreme Court codified customary use in a 1974 ruling that “[n]o part of Florida is more exclusively hers, nor more properly utilized by her people than her beaches. And the right of the public of access to, and enjoyment of, Florida’s oceans and beaches has long been recognized by this Court.” Furthermore, the Court stated that “if the recreational use of the sandy area adjacent to the mean high tide has been ancient, reasonable, without interruption and free from dispute, such use as a matter of custom, should not be interfered with by the owner.”

So, I wondered, does customary use mean that because people have been sitting on a beach for 100 years, they retain that right no matter what the tides—or a surveyor—says?

“Well, that’s not clear,” Flournoy explains. “But in practice, the scholars who look at it, the courts that have looked at it, haven’t required antiquity. We haven’t been here since antiquity, so if there is some pattern that establishes over a long time, without interruption—that doesn’t mean 24/7, seven days a week—but it hasn’t been significantly interrupted and it’s a defined place and used by the members of a community or tourists and it’s relatively certain or reasonable, then the rights exist.” Many scholars, she says, point to a period of 50 to 70 years to determine this ancient use.

“In general, if you think about it, when [people] go to the beach, where do they put their towels?” Flournoy asks. “Often [that kind of beach use] is part of a pattern that has gone on for a long time in any given area…but the general principle is, it is a use that has been practiced or exercised for a long time.”

If the county continues to enforce beach access by recognizing homeowners’ private surveys based on the MHWL, someone will have to go through the legal process of proving customary use.

Barbara Stephens plans to take to the stand to prove just that. At the end of last year, Stephens heard a knock at her door while doing laundry. When she answered the door, a stranger served her a summons for allegedly trespassing at 3935 Shell Road Beach for walking in front of the Olsons’ property. I met with Stephens and her fiancé, Jim Skinner, at Shell Road Beach earlier this year. Standing together in the sand, she told me she hasn’t walked the beach past the Olsons’ home since her legal battle began.

Stephens has photos of her family on the beach from over five decades ago. “I first came here when I was 13 years old,” she told me. “Five generations of mine have walked this beach and I want to keep it the way I remember.” Her late mother fought for access to the beach, too. She remembers when the Solymar, a small gated enclave nearby, started kicking people off the beach back in 2006. “They had hired security guards to patrol the beach and wouldn’t let anybody go through. My mother, who was 85, had a fit. This is the way it starts,” she says, “where the wealthy people will take over everything and the public won’t have the beach anymore.”

Local historian and vice president of the Historic Spanish Point Campus at Marie Selby Botanical Gardens John McCarthy says at least a century of the modern public has used Shell Road Beach. “There’s one classic photograph from about 1920 of all these people at the beach,” he says. “Shell Road used to be the community’s main bathing beach, the same way we think of Siesta Public Beach today.” (It’s hard to imagine, but McCarthy says back in 1950 some members of the public thought it was crazy to buy Siesta Key Beach—selected the No. 1 beach in America twice—because people had access to miles of empty sandy beaches and didn't see the need to spend tax dollars to purchase it. Our elected officials had the foresight to buy it.)

Conflict over Shell Road Beach started at least as far back as 1972, when Shell Road was a mile-long unpaved road. Homeowners blocked traffic, upsetting other locals who did not live along the road but had used the area for more than 60 years. Later, in 2006, multiple “No Trespassing” signs appeared along the beach by newer luxury homes, and beachfront owners hired off-duty cops to threaten “trespassers” with arrest.

At the time, Sarasota County Commissioner Nora Patterson warned that these tactics would lead to further privatization of the beaches unless the county stood up for the public. Two years later, the same situation occurred along the southern end of Siesta Key’s Crescent Beach. “No Trespassing” signs cropped up and timeshare owners along the beach blocked access with deck chairs and threatened to call the police on anyone who dared to cross the barrier they had erected. Since 2009, sheriff's deputies have also responded to disputes at Point of Rocks, where a homeowner stretched "crime scene" tape across the beach to dissuade public intrusion.

The Sarasota County Commission prepared an ordinance that same year to address the mounting tension between beachfront property owners and beach users. The proposed ordinance prohibited “signs, gates, barricades, fences, walls or physical impediments” seaward of a bluff or established line of vegetation. In December 2009, however, commissioners voted unanimously not to proceed with regulations. Faced with firm opposition from beachfront owners and the “sacred” principle of private property rights, the county decided to address beach access issues on a case-by-case basis, rather than with an ordinance that private homeowners feared would sweep too broadly.

And that’s where everything remained until the passage of HB 631 in 2018, which has made it even more difficult for local governments to secure public access to beaches.

Sarasota County Attorney Stephen DeMarsh delivered an Interoffice Memorandum May 1, 2018, at a Board of County Commissioners meeting that would have headed off any difficulties before HB 631 was to go into effect on July 1. The memo informed county commissioners of a window of opportunity to save public beach rights. The board had the option to create an ordinance that would have enshrined public beach access before this date, so they wouldn’t have to jump through the law’s procedural hoops. The board of county commissioners chose not to do anything.

When asked about the board’s decision not to create public beach access, Commissioner Nancy Detert, then chair, said she was waiting on DeMarsh’s recommendation before she made her decision. Commissioner Charles Hines, who was also on the board at the time, remembered the memo, but said he did not want to “play Monday morning quarterback and review what we did or did not do.”

Meanwhile, our beaches are only getting smaller. Erosion and sea level rise will continue to shrink Florida’s sandy coastline over the coming years. Strong storms will occasionally wash out significant chunks of beach.

The pandemic has also highlighted the disparity of beach access between the public and the private. Back in March, when county and city beaches were closed to the public to contain Covid-19, two 150-foot chain link fences that stretched from a strip of sand dunes into the water appeared at Siesta Key’s Mira Mar Beach on the north end of the key. The fences were constructed by Mike Holderness, who owns vacation rental property there. In an interview with the Sarasota Herald-Tribune, Holderness said he built the fences from the dunes to the water to help the sheriff’s office enforce the line between public and private property. Holderness also had his guests wear wristbands to show they belonged on the beach. He wasn't willing to speak with me because of a pending court case, but claimed in the Herald-Tribune that he built the fence for public safety and to prevent the spread of Covid-19. After much posturing, Holderness took the fences down after the county threatened him with fines.

The public may get some clarity when Stephens tries to prove customary use in court. For now, though, jury trials have been suspended because of the pandemic, so no court date has been set. But that’s just for Shell Road Beach. Without a sweeping law defining customary use, beachgoers will have to go to court for each beach in dispute.

Dave Rauschkolb, the chairman of Florida Beaches for All, a nonprofit advocacy group that is fighting for the public’s right to all beaches since HB 631 passed, explains the situation. The group has been focusing much of its energy on Walton County, where several customary use lawsuits are pending.

“We’re a motivated group up here,” Rauschkolb says. “But the other side has unlimited funding, very deep political connections and 30 to 40 lawyers, and with Covid, well, I’m not hanging my hat on these lawsuits.” As an example of what Florida could be, Rauschkolb points to the state of Oregon, where over 50 years ago, they passed the Beach Bill. The bill established state ownership of the land from the water up to 16 vertical feet above the low tide mark, which basically opened up all of Oregon’s beaches to the public.

“I’m not optimistic unless we can pass a constitutional amendment,” Rauschkolb says. “And that’s not easy to do. It takes millions of dollars and lots of signatures.” (A citizen initiative-led amendment on the ballot is always tough, and Gov. Ron DeSantis just signed into law SB 1794 in April, which adds hurdles, like increasing the signature requirement from 10 percent to 33 percent of all votes cast in the prior presidential election. The signatures also would have to come from two-thirds of Florida’s 27 congressional districts instead of half.)

Rauschkolb is not unfamiliar with the viewpoints of beachfront property owners. He owns commercial property in Seaside where he runs a restaurant. “I paid for the view for me and my customers,” he says. “Beachfront property owners will argue they pay more taxes because it’s oceanfront. Yes, homes closest to the water are more valuable. The value is in the view, but they haven’t paid for the right to exclude people.”
Florida taxpayers make living along the coast feasible, he says. The Florida Hurricane Catastrophe Fund subsidizes homeowners—many of whom are not from Florida—to buy and develop property along the water. Taxpayers also underwrite beachfront property owners through the National Flood Insurance Program.

Rauschkolb says saving the beaches for the public is nonpartisan. Florida Beaches for All is filled with Democrats and Republicans. “I’m still an idealist,” he says. “Every Floridian lives less than an hour’s drive away from the beach. Every Floridian has a favorite beach going back generations. It is the most audacious notion that people think they can own the beaches. It’s beyond my comprehension. It’s fundamentally wrong to exclude anyone from any beach, from any grain of sand in Florida.”

This past spring, Rep. Good tried to rectify the big mess that HB 631 has caused by co-sponsoring a bill, which aimed to repeal the law. It died in the Civil Justice Subcommittee on March 14. Rauschkolb says Florida Beaches for All lobbied for repeal with no success this year, but is trying again for the 2021 session.

I returned to north Casey Key, armed with my newfound legal knowledge and determined to watch the sun set. I marched south, careful to keep at least one foot in the wet sand. I kept one eye on the setting sun and the other looking for the flashing lights of a cop car. While it remains a legal dispute, I can’t help but feel it’s a moral question—should private individuals own the beaches here, or anywhere? The sun was sinking. The only light I saw was a tiny flash of green from the sea as the sun slipped below the horizon.