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Beach Bummer: The Texas Supreme Court Guts the Open Beaches Act

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That august body of reason and enlightenment, the Texas Supreme Court, has written an obituary for Texas’ public beaches. In a 5-3 decision handed down today, the all-Republican court reaffirmed an earlier decision that undermines Texas’ half-century-old Open Beaches Act and the much-older tradition of people freely enjoying the beaches from South Padre Island to Sabine Pass.

“It seems that the Open beach Act [sic]—at least for Galveston’s West End—is dead, thanks to the Supreme Court,” Texas Land Commissioner Jerry Patterson said. “This is truly a sad day.”

The public has long been guaranteed access to beaches in Texas. But what happens when erosion pushes the public’s easement onto what was previously private property? The state, for decades, has enforced a “rolling easement,” so that when erosion, sea-level rise or storms push the beach back, the strip of public beach moves too. Now the Supreme Court has at least partially undone that policy. After hurricanes or other “avulsive events,” the majority wrote, “the land encumbered by the easement is lost to the public trust, along with the easement attached to that land.” In other words, the easement doesn’t “roll” after storms.

In 2005, after Hurricane Rita eroded Galveston’s beaches, California divorce attorney Carol Severance sued the General Land Office to prevent the agency from enforcing the easement on her West End investment properties. She was represented by the California-based Pacific Legal Institute, a conservative group.

Today’s decision reaffirms a 2010 Supreme Court ruling in Severance v. Patterson that found that because deeds dating from the Republic of Texas in 1840 didn’t explicitly mention a public right of access, no such right automatically exists.

Texas Attorney General Greg Abbott excoriated the 2010 decision and was joined by dozens of parties including such bleeding hearts as Jerry Patterson, the Galveston Chamber of Commerce and Brazoria County, in calling for a rehearing. Abbott all but accused the Supreme Court of judicial activism.

“With the stroke of a pen, a divided court has effectively eliminated the public’s rights on the dry beach,” says the attorney general’s request for rehearing. “[T]he majority could only cite—nothing. Not a single case, rule, precedent, principle, empirical study, scientific review, or anything else.”

Bowing to pressure, the Supreme Court granted a rehearing last year. But it seems to have made little difference. The majority’s opinion, despite some hemming and hawing, takes a very broad view of private property rights.

On one hand, the public has an important interest in the enjoyment of the public beaches.  But on the other hand, the right to exclude others from privately owned realty is among the most valuable and fundamental of rights possessed by private property owners.

The court also dismissed the 180-year-old custom of public enjoyment of Texas beaches as “unsupported by historic jurisprudence” and “a limitation on private property rights.”

One practical effect of today’s decision: The rapidly-eroding West End of Galveston won’t be eligible for beach-nourishment funding. Said Patterson:

[T]he ruling ends any future possibility of much-needed beach renourishment projects for Galveston island’s rapidly eroding west end and will make it impossible for the state to step in quickly to clear the beach of debris after the next hurricane demolishes the front row. After Hurricanes Ike and Dolly, the General Land Office spent $43 million to remove debris from the state’s beaches and bays.

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One final thought: Although the court decided that the public easement can move as “natural forces cause the vegetation and the mean high tide lines to move gradually and imperceptibly,” the majority seems to have failed to grasp the No. 1 truth of Texas’ coastal geology: The state’s beaches are eroding rapidly. Not just that, but the rate of erosion is accelerating as sea-levels rise in response to climate change.

Coastal geologist Jim Gibeaut, of Texas A&M-Corpus Christi’s Harte Research Institute, has estimated that the Houston-Galveston area will see between 2.3 feet and 4.9 feet of sea-level rise over this century. In Galveston, 78 percent of households would be displaced at 2.3 feet and 93 percent under the 4.9 feet scenario. “This would eliminate Galveston as a viable community on the Texas coast,” wrote Richard A. Davis Jr. in Sea-Level Change in the Gulf of Mexico, a book published last year.

Someday, our private property-rights extremists will have to plant that “Don’t Tread on Me” flag on the bottom of the sea.

Forrest Wilder, a native of Wimberley, Texas, is associate editor of the Observer. Forrest specializes in environmental reporting and runs the “Forrest for the Trees” blog. Forrest has appeared on Democracy Now!, The Rachel Maddow Show and numerous NPR stations. His work has been mentioned by The New York Times, the Washington Post, the New Yorker, Time magazine and many other state and national publications. Other than filing voluminous open records requests, Forrest enjoys fishing, kayaking, gardening and beer-league softball. He holds a bachelor's degree in anthropology from the University of Texas at Austin.