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The_Trash_Heap writes:

A point to be considered by the district court upon re-examination of the merits of the taking claim is the language in the TOBA about the historic public use, "since time immemorial" or some such, of the easement having been the major source of its creation, the lesser source being purchase. The public easement generated by historic public use, having no fixed boundaries, just a moving pair of vegetation and high tide lines, was and is the reason why the concept of a rolling easement came into being and must be perpetuated. It'd be ridiculous to have to survey the lines over and over, much less to try to establish what each bit between the new lines is worth. It's worth little except for recreational beach access and, of late, much litigation.

Still another point is that not all taking is compensable. The general rule on regulatory takings such as this one is that compensation is not required if the major purpose of the taking is to prevent a public harm, rather than to promote a new public benefit. For example, a city may at the owner's expense condemn a derelict building and compel its removal without having to compensate the owner because derelict buildings are public hazards potentially harboring vermin and drug addicts, at major risk of burning, and would eventually collapse onto adjacent private property and public thoroughfares. Buildings, fences, etc. left in the public beach easement would be similar hazards and in addition block access to the wet beach (between the high and low tide lines), which is so far indisputably state land, even though the wet beach may have been moved by the same storm that moved the vegetation line. Thus, the rolling easement, while nominally a taking, is not creating a new public benefit, but preventing a public harm, and is therefore not compensable.
