Can Beachgoers Walk the Beach Without a Tag?

Beachgoers enjoy a walk on the beach in Avalon

The Herald received a series of Spout Offs stating that an Avalon beachgoer’s rights were infringed upon. The beachgoer was allegedly stopped by the Avalon Beach Patrol because they took a walk on an Avalon beach without a beach tag.

Another spouter came to this person’s defense. They claimed the beach walker “had every right to enter that beach and go for your walk. It is illegal for the beach attendants to have stopped you. Every person has a legal right to enjoy the beaches for walks and even swimming.”

This claim, that a stroll on a beach that would otherwise require paid access is allowed, is partially true.

Beach access without a tag on Seven Mile Island is permitted outside the hours of 10 a.m. and 5 p.m., between May 25 and Sept. 2. According to the Stone Harbor Beach Patrol, all beach access ¬-- including walks -- requires a beach tag during those seasonal hours.

This claim depends on where that beachgoer is enjoying their walk. The actual beach - as in the area with dry sand above the mean tide’s high-water line - is owned by the Borough of Stone Harbor, Avalon, or whatever property owner owns any given beach.

The wet sand, which extends to the highest point of the tide, is public land per New Jersey’s Public Access rights, which can be found here: http://bit.ly/NJPublicAccess.

The precedent for these laws dates back to the Roman Empire. The Roman Emperor Justinian enacted similar public trust laws in 500 A.D.

As written on NJ.gov, Book II of the Institutes of Justinian reads: “By the law of nature these things are common to all mankind – the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitations, monuments, and the buildings, which are not, like the sea, subject only to the law of nations.”

New Jersey is a “high water state,” which means property owners own the land up to the tide’s high-water line. Many states, such as Massachusetts, are “low water states,” where property owners have rights to the lowest point of the tide.

As long as a walk takes place on the tide’s wet sand, it's legal. However, these public trust laws are seldom enforced.

Enforcement of these laws is not consistent, clear, or common. For most of the state’s history, these public trust laws were not state laws.

This changed with a bill passed under Gov. Phil Murphy. The bill, S1074, codified these public access rights into state law.

On March 25, when the Assembly voted on final passage of the measure, Assemblymen R. Bruce Land and Matthew Milam (both D-1st) both abstained.

When a Senate vote was taken to concur with the Assembly’s action, also March 25, Sen. Robert Andrzejczak (D-1st) is listed as “not voting” on the New Jersey Legislature website.

Critics of the law said it did not go far enough. NPR (National Public Radio) reported in May 2019 that critics of the legislation feared the “bill does not move public access forward in any meaningful way ... It has vague language that could lead to a lot of lawsuits from towns that have fought public beach access for years. They want money for the beaches, paid for by the public.”

Cape May Point commissioners opposed the law and claimed the state Department of Environmental Protection (DEP) is not capable of thoughtfully enforcing beach access, in the same way local enforcement can.

A June 14 Herald article reported: “Commissioners believe the law would adversely affect ownership rights, private and public properties in negative ways; which would result in unnecessary and costly litigation, ultimately creating an undue financial burden on municipalities and property owners.”

The bill mentions the protection of the area below the mean high-tide line once, and only in the context of a historic court ruling.

While the spirit of the law would allow all members of the public to enjoy the ocean waters, enforcement is left to the DEP per section 1c of the law.

Stone Harbor Beach Patrol Chief Sandy Bosacco said that beach tags are required to access any portion of Stone Harbor beaches, wet or not.

What does that mean for the spouter’s beach walk? The answer is indefinite.

New Jersey common law dictates the spouter has rights to the areas of wet sand. State law is less clear.

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