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Walton County to use 'ancient' evidence to prove its case for customary use

Tom McLaughlin
Northwest Florida Daily News

DeFUNIAK SPRINGS — In remaking its case for a declaration of customary use across all of its beaches, Walton County has parsed 21.4 miles of private property into five distinct zones and argues the public should be allowed access to the dry, white sands in each. 

More:Walton County budgets $1 million to cover annual cost of customary use litigation

"In light of ... incredible growth and because of the relatively recent phenomenon of private property owners attempting to bar the public from the beaches, Walton County has been forced to take action to protect the public's customary use," attorneys said in court documents released Friday.

More:FILE PHOTOS: Walton County beaches - staying near the water line

County attorneys will use the same sources of evidence to bolster their argument for customary use in each of the five zones, according to a 229-page Amended Complaint for Declaration Affirming Customary Use.

Evidence will include archaeological remains from pre-European Native American settlements, plats and maps, photography, newspaper articles and advertisements and the direct testimony of visitors and residents.

Walton County originally filed a complaint seeking a declaration of customary use in December 2018.

More:Customary use gets a day in court

More:Walton County’s customary use lawsuit has made little headway since December 2018

That legal document claimed the county's beaches should be open to all by virtue of them being publicly accessed for a period of time judged "ancient, reasonable, without interruption and free from dispute."

It has been challenged by more than 1,000 beachfront property owners, many of whom began putting up no trespassing signs and fencing off their beach property in 2018, after a law was passed that nullified a Walton County customary use ordinance. 

A sign marks the boundary between Rosemary Beach and Inlet Beach property.

On July 2, County Judge David Green ruled that attorneys for the property owners had correctly pointed out in court motions that the county had been overly broad in stating its rationale for seeking a declaration of customary use across all of its beaches.

He ordered the county to revise its lawsuit and detail what evidence it would use to make its case for customary use on each beach parcel it intended to have declared public.

More:Judge orders Walton to clarify customary use lawsuit

County attorneys were given until Sept. 30 to produce their evidence. They were given a 15-day extension that expired Thursday. Attorneys for the homeowners now have 30 days to respond to the amended complaint.

The "zones" established by the county are:

Zone 1 — Extending from the Okaloosa-Walton line about 4.9 miles to the eastern border of Topsail Hill Preserve State Park.

Zone 2 — Extending from the eastern boundary of Topsail Hill Preserve about 4.8 miles to the western boundary of Grayton Beach State Park.

Zone 3 — Extending about 2.5 miles east through Grayton Beach State Park to encompass all privately owned land.

Zone 4 — Extending about 3.9 miles from the eastern edge of Grayton Beach State Park to the western edge of Deer Lake State Park.

Zone 5 — Extending from the eastern end of Deer Lake State Park about 5.3 miles to the Bay County line.

The county's attorneys, citing state statute, made the case that losing the battle for a customary use declaration in one zone, or for one parcel, would not disqualify the county from seeking declarations in other zones.

Deputy Russell McMillian with the Walton County Sheriff's Office talks with beachgoer Stormy Stoy in 2019, informing her that her umbrella and chairs are on a private beach and must be moved closer to the water.

"The failure to establish entitlement to the affirmation of customary use as to any customary use zone or any parcel within any such zone will not prohibit the affirmation of customary use as to any other zone or parcel," the complaint said. 

More:Walton County has spent close to $1 million on customary use battle

The amended lawsuit states the county will rely on archaeological remains from pre-European Native American settlements to show that "in coastal Walton County native peoples left remains at or near the beach over thousands of years."

Those remains help "demonstrate that certain species were collected from the beach or surf zone or from canoes ... evidence of their traversing the beach, sitting on the sand, launching canoes, fishing and swimming," the lawsuit said.

General land office township and dependent resurvey plats will be used to demonstrate peoples' desire to live near the beach. That documentation "represents a desire to own and potentially use the beach for a variety of uses, including traversing the beach, sitting on the sand, sunbathing, picnicking, fishing, swimming or surfing off the beach," the amended complaint said.

Quadrangle maps, vertical photography and subdivision plots will be introduced as evidence to show trails, roads and paths leading to Walton County's beaches and "accessing dry sand for customary use activity."

Photos, "primarily by beach users of families and friends engaged in various activities at the beach" will be introduced into evidence, as will newspaper articles and advertisements that "reflect the range of typical beach uses," the complaint said. Articles notated as exhibits date back as far as the 1950s.

Published accounts by residents, visitors and others will be used as evidence to "reflect the range of typical beach uses," the complaint said. One account, dated 1912, chronicled a child's recollection of climbing dunes with a sibling to "look for vessels in the Gulf."

County ordinances regulating driving on the beach and newspaper accounts of their establishment also will be brought into evidence in arguing customary use in each of the five zones. 

The attorneys also announced plans to introduce affidavits from hundreds of Walton County residents and visitors as "direct evidence of the following customary uses; traversing the beach, sitting, sunbathing, picnicking, fishing, swimming or surfing."