Is Florida's beach access in jeopardy? Lawsuit pits private landowners against beachgoers

Access to Florida's beaches lies in the hands of a Pensacola judge after a new lawsuit was filed challenging the principles used to establish public beach access.

A Walton County beach owner is fighting a local customary use ordinance, which opens private beaches under the theory that public use has been historic and ongoing, among tests.

What makes this federal case different than a half-dozen other lawsuits over beach access is its scope; instead of picking apart a piece of the ordinance, the new lawsuit asks if the core idea of customary use is legal.

Who owns Florida's beaches?:Private landowner rights can clash with public beach access

The effects could spread far outside Walton County. Many popular beaches, including the sands around Naples Pier, are publicly owned and would not be affected by the lawsuit. But several other beaches across the state rely on the decades-old customary use principles to stay public, such as areas of Daytona Beach.

Any laws from legislators seeking to address customary use would be invalidated, including a recently passed bill providing more protections for beachfront landowners. Naples’ recently passed customary use ordinance would also be voided.

The lawsuit could also shut down the only real option for cities or counties to open up private sands to beachgoers. In Collier County, the public walks on private beaches with relatively little problem. Almost all of Little Hickory Island in Bonita Springs is privately owned, but beachgoers still fill the dunes without homeowner complaints.

If the judge in the Walton County case sides in the landowner’s favor, and against customary use, hotels and homeowners could become emboldened and rope off their sands with impunity, knowing the local government couldn’t do anything.

More: Bill requiring courts to decide public access to private beaches heads to Gov. Rick Scott's desk

The Ritz-Carlton Beach Resort in North Naples could take advantage of such a ruling. The county and The Ritz have an agreement in which it keeps the hotel keeps its beaches open to the public except for the busiest 30 days of the year. Without the threat of a customary use ordinance, those beaches could be roped off permanently.

Customary use is used outside of Florida, as well, Walton County attorney Sidney Noyes said.

"This has big implications we'll see maybe across the country," Noyes said.

States like Oregon and Texas have public beach access based around similar customary use principles. Depending on how a ruling is interpreted, these states could face similar public access questions.

The new lawsuit comes as other court cases are winding down. Walton County’s customary use ordinance, which has been in place for more than a year, is ending on July 1 when the new state law goes into effect, and the older lawsuits are specific to the ordinance.

The state law requires that a judge, not a county commission or city council, find that a beach qualifies for customary use and must be open to the public.

Walton County commissioners have said they will begin another process to craft a new ordinance. The lawsuit is cutting in beforehand to ask if customary use is even legal, said Kent Safriet, the Walton County beach owner's attorney.

“The county is going to have to go through this brand new process that no one has been through,” Safriet said. “It makes sense to have this threshold decision now rather than later.”

More: Public access to beaches behind homes supported by new Naples ordinance

Beachfront property owners are unhappy with the ordinances, claiming the county is taking their land without just compensation. The takings claim serves as the basis for the federal case.

The last customary use lawsuit went for more than a year, and Walton County is in it for the long haul, Walton County Commissioner Tony Anderson said in a written statement.

“This kind of stuff burns me up,” Anderson said. “This is about doing the right thing. It’s time we stood up and took back our beaches.”

Safriet said the Walton County lawsuit could ultimately end in the U.S. Supreme Court.