Cartographical Risk and Rising Sea Levels

Cartographical Risk and Rising Sea Levels

January 19, 2010 19:33
by J. Wylie Donald

I had both eyes opened this past Friday. The Mayor of Belmar spoke at the Climate Change Impacts & Challenges for New Jersey Businesses & Coastal Communities conference sponsored by Monmouth University and the Urban Coast Institute. His topic: the responses to climate change he is overseeing in his New Jersey Shore community. Disaster planning is a big part of it. So are self-sufficiency and community response. We expect such attitudes in communities "that go down to the sea in ships, that do business in great waters." It was somewhat disconcerting to see that perspective surfacing where we go to play, not to work.

I spoke after the Mayor. Surprisingly, the audience stayed with me. My topic: cartographical risk - fancy language for the business risk associated with mapping. My premise is that with rising sea levels intimate knowledge of where the lines are going to be drawn will be a source of business success. I settled on the high-tide line for my talk (but could have chosen flood plains, wetlands, critical habitat - all of which will be in flux as the climate changes).

In New Jersey, as in many other places, the State owns up to the mean high tide mark. Beyond that are the uplands, which are governed by the usual rules of real estate practice. Owners of the littoral (shorefront), however, have a different set of rules. They welcome accretion and reliction (which add to their holdings) and despair at erosion and inundation (which take away). The law enforces these concepts under the basic premise that the gain of the littoral owner is balanced by the risk of loss. Because the shorefront property can be gone tomorrow with no compensation to the owner, it is just to permit the owner to enjoy the benfit of natural accretions to his fee.

The common law is well-settled on these topics, at least where the movement of the sea (and the land with it) is lateral, not up and down. But what will the law say when all the shoreline property owners are being slowly submerged and not one is gaining; all are losing.

One answer may be that the submerged owners (now former owners because the State will have defeased them by virtue of its title to all lands below high tide) retain some interest that justifies compensation. In Ocean City Association v. Shriver, 64 N.J.L. 550 (E.&A. 1900), Mr. Shriver sought to benefit from the high tide line's advance over the Association's beach and onto his property. When the line retreated a few years later, he claimed the newly evident beach. The appellate court affirmed his view. The Court of Errors and Appeals was not so hospitable and reversed. It held that the status of riparian (sic) owner was never conveyed to Shriver and, accordingly, the common law rules applicable to that class did not apply to him. Thus, the Association's right to the beach was restored.

Apparently, the State's advancing ownership of the newly submerged lands did not extinguish all of the Association's rights in that land. If the land dried out, the Association's rights were restored.

This is an important issue for at least two reasons. First, it is the rare property policy that insures land itself. Those at the shore whose front doors start opening in the surf will need to seek compensation elsewhere. Second, billions of dollars of land value are likely to be lost if the oceans rise half a meter. Will the law carry on as it did when ocean levels were static? Or will it adjust so that there is some equity in the adjustment of the rights and obligations of everyone involved: those whose land is submerged receive some compensation and those whose land becomes the new shoreline make some payment for their climate change windfall. l

Figuring this out will be essential to economic success at the shore. Knowing where that high-tide line is, or will be, may make all the difference. Hence, certain cartographers may be well worth knowing.

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