Florida's case law, however, does not suggest a high likelihood of the expansion of the public trust doctrine to cover the dry sand beach in the foreseeable future.
The use of prescriptive easement to establish access to the dry sand beach for the general public involves a fairly difficult burden of proof.
Portions of the dry sand beach are only public under this theory after claimants have prevailed in litigation.
59) Even if Florida emulated Texas' use of implied dedication to ensure public access to the dry sand beach, this approach, like the use of prescriptive easements, is ad hoc and fact-specific, potentially necessitating thousands of individual lawsuits against unhappy property owners.
62) Though Nollan concerned the dedication of upland, rather than the dry sand beach, courts could generalize this holding.
Purpresture law could be used to protect public access to public trust lands in cases where private owners have fenced the dry sand beach, limiting the public's right to use the part of the beach owned by the state.
1974), a nonprofit organization argued that a private condominium's fences around parts of the dry sand beach constituted a purpresture blocking the public's enjoyment of rights acquired through prescriptive easement, implied dedication, and/or custom.
1969), the court ordered a private property owner to remove a fence he had erected on the dry sand beach within his property line.
Documenting such use can be expensive or even impossible, (87) and, according to a 2002 legal opinion issued by the state attorney general's office, the dry sand beach is not subject to public use under the "customary right of use" doctrine until that right has been established by a court.
In 2006, a Florida appeals court challenged this option for retaining public access to dry sand beach, ruling in favor of property owners who argued that application of the act effected an unconstitutional taking of riparian owners' property without just compensation, particularly their littoral right to accretions.