Castles Made of Sand

Ninety-five percent of land in Texas is privately owned, nearly the whole state. One longstanding exception: Texas beaches, which are still open to anyone. The reason for that is the Texas Open Beaches Act, which celebrates its 50th birthday this year. Private property activists, especially the ones with beach houses, have never liked the law and have tried to undermine it for decades. The past year has been especially rough. First, Hurricane Ike eroded shorelines on Texas’ upper coast, pushing beaches closer to homes. Property rights activists have taken advantage of the storm’s aftermath to shrink the public beach. Then there’s a private property rights lawsuit—soon to be heard in state court—that could do away with the Open Beaches Act for good.

The act defines the public beach area as an easement stretching from the “line of vegetation” on the beach to the Gulf of Mexico. As the shoreline erodes, the easement encroaches inland, sometimes leaving people’s homes illegally stranded on the public beach.

Ike blew away all the vegetation and eroded beaches from Bolivar Peninsula to Galveston Island and Brazoria. That led to serious debate: How do you define a beach when there’s no vegetation?

Beachgoers cheered when General Land Office Commissioner Jerry Patterson, the pistol-packing straight shooter who enforces the Open Beaches Act, initially pledged to wait a year for beaches and their vegetation to build back—a natural process following a storm—before designating the public beach.

That didn’t satisfy some landowners, specifically Rep. Wayne Christian, the Republican from Center who owns a vacation home on Bolivar. Late in the legislative session, he punched a Wayne Christian-shaped hole in the law, adding an amendment to a bill allowing him and his neighbors to rebuild their Ike-destroyed beachside homes even if they ended up on the public beach. The amendment applied only to certain homeowners on Bolivar Peninsula (read: Wayne Christian).

Patterson vowed to ignore Christian’s amendment, but in August, Patterson changed course. The vegetation hasn’t returned to the beaches on the Texas Upper Coast, and Patterson apparently tired of waiting. He defined the “beach” as a 200-foot strip extending from the mean low-tide line. Open beach advocates say a 200-foot beach is too narrow, much smaller than the vegetation-to-sea standard. At high tides, they contend, the Gulf will practically lap at the first row of homes. The advocates accuse Patterson of setting an arbitrary rule that has defined away a good chunk of the public’s Gulf-front property.

Meanwhile, Christian was suddenly praising Patterson for “doing the right thing.” The footprint of his house would lie just outside the 200-foot easement.

“Ike came and changed everything,” says Land Office spokesman Jim Suydam. He points to provisions in law that refer to the 200-foot rule as an alternative to the vegetation line.

One of the lawmakers responsible for the Open Beaches Act, former state Sen. Babe Schwartz, a Galveston Democrat, stridently disagrees. Schwartz says the Legislature never meant for the 200-foot rule to apply outside of South Padre Island, where a vegetation line is sometimes hard to find. Patterson’s new rule is a gift to front-row homeowners, he argues. “Patterson was not elected to protect them,” Schwartz says. “He was elected to protect the 24 million people who live in this state and want to use the public beach.”

Meanwhile, the 200-foot rule will look piddling if a libertarian legal institution gets its way. On Nov. 19, the Texas Supreme Court will hear oral arguments in Severance v. General Land Office. The plaintiff is Carol Severance, a Californian who owns four homes and two lots on Galveston Island, according to property records. In 2006, the Land Office asked her to move three of her homes off the public beach and sweetened the pot with $120,000. Severance refused and enlisted the California-based Pacific Legal Institute to sue the state. The suit argues that because the public beach easement is encroaching onto private property, it constitutes an unconstitutional seizure and taking. If Severance prevails, Texas’ public beaches may be a thing of the past.