In all, nearly a mile of East Hampton’s oceanfront shoreline could become off limits to the public if parallel lawsuits brought by a group of property owners prevail. There is a great risk that stretches of beach in Amagansett and on Napeague would be, in effect, privatized after centuries of being open to all who wished to pass. The property owners are claiming that a 19th-century sale by the East Hampton Town Trustees reserved for them alone the use of the area above the high-tide line. If they win in court, everything from beach driving to birdwatching could be blocked when the tide is up.
So far, the trustees and town board have mounted a lackluster defense of a tradition considered almost sacrosanct. The trustees chose Sag Harbor’s village attorney to handle the case, and the town, also named in the suit, has had an inactive town attorney, who was removed from daily responsibilities in July after a dispute, on the case. Neither has the kind of litigation experience necessary for taking on a matter this important.
It is to some measure the fault of the trustees and town board that the claim of private ownership reached the point of litigation in the first place. The rules governing beach driving are rarely enforced, especially in the early morning and evening hours, and the so-called “truck beach” on Napeague has become too crowded in summer. During the fall bass runs, pedestrians find the beach almost impassable because of all the tire ruts. This is not to say that the plaintiffs would not have filed the lawsuits had, for example, four-wheeler permit checks been more rigorous. However, a more active role by police and marine patrol officers might have helped avert the current high-stakes legal confrontation.
Faced with the prospect of being reviled as the group that lost the beaches, and perhaps resigning themselves to defeat, officials are said to be privately considering the possibility of condemnation if the town does not prevail in court. But well before the matter advances that far, the town board and trustees should re-evaluate their defense team and its strategy, and take immediate steps to increase their firepower.
The public trust doctrine, which involves access to waterways and other assets, and the East Hampton Town Local Waterfront Revitalization Program, which carries the force of state law, could perhaps be brought to bear on these suits. Furthermore, a reasonable question might be whether the 1882 land sale cited by the property owners in itself violated the law by giving away something the trustees did not have the right to abandon, namely, free passage along the shore.
From colonial times onward, the public has had a vested right to use the beach. Those who value the continued freedom of the beaches should demand that town officials spare no effort or expense in taking on this fight.