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Time to Defend Your Beach Texas!
by Rob Nixon
So states one of the greatest pieces of coastal legislation in any of the 50 states of the United States, Chapter 61 of the Texas Natural Resources Code, otherwise known as the Texas Open Beaches Act.
There is one thing around the world that unites all beach users, beach access. Without that, we as beach users cannot fish, cannot surf, cannot launch our kiteboards or sailboards and we cannot watch our children grow up playing in the sand and in the ocean discovering the wonders that both contain. Without the public beaches afforded Texans by the Texas Open Beaches Act, only the few wealthy individuals that can afford to buy property and build upon the beachfront would be allowed to enjoy and charge for the privilege to enjoy the state’s beaches. Truthfully, there are those that would love to see just that happen.
Texas has a very unique law in the Texas Open Beaches Act that was ratified in 1959. This law recognizes that Texas beaches are dynamic and always shifting and, in order to protect the public beach and the public’s right to use its beaches, a rolling easement must be established in order to allow for this movement. After all, applying a fixed boundary to a mobile natural coastline is both futile and unrealistic. The authors of the law knew that barrier islands migrated and changed with the tides, currents and storms and therefore so should the public beach easement. While this law makes perfect sense to one who studies the beaches and their mechanics or just a regular observant beachgoer, it has constantly been challenged by those who would want to build close to the water on the Texas Gulf Coast. To remedy this, Texas came up with a disclosure statement that is required to be signed by all coastal property buyers acknowledging that they were aware that their property and homes could be lost to the natural movement of the shoreline.
Enter Carol Severance, a California Divorce Attorney and Real Estate Broker, who knowingly purchased two properties in Galveston that were already on the Texas General Land Office’s property removal list for having found themselves within the public beach easement; one since 1998. She ended up owning four properties at one time. Ms. Severance knew they were already in danger of being condemned and additionally signed the OBA disclosure statement upon closing on the purchases. In 2006, Land Commissioner Jerry Patterson sent her and 116 other property owners a letter declaring that the properties were indeed on the public beach and must be removed. The GLO went so far as offering up to $40,000 to aid in the demolition or relocation of those structures. Severance refused and along with the Pacific Legal Foundation, a non-profit conservative property rights law group out of California, filed suit against the Land Commissioner, Texas Attorney General and Mayor of Galveston claiming that their property had unconstitutionally been taken by the state under the Open Beaches Act.
In 2007, Texas Southern District Judge Kenneth Hoyt dismissed the suit declaring the Open Beaches Act constitutional and that Severance had knowingly entered into her contracts aware of the risks. However, the decision was appealed to the U.S. 5th Circuit Court of Appeals who upon review of the case sent it back to Texas for the Texas Supreme Court to answer questions regarding the Open Beaches Act. Does Texas recognize a rolling public beach easement? Is this easement derived from English and Spanish Common Law or the Open Beaches Act? To What extent should an affected property owner be compensated by the state?
In his dissenting opinion of the decision to send the case back to Texas, 5th Circuit Judge Jacques L. Wiener, Jr. called Severance versus Patterson a "thinly veiled Libertarian Crusade". The opinion went on to say, "The real alignment between Severance and the Pacific Legal Foundation is not discernible from the record on appeal, but the real object of these Californians’ Cervantian tilting at Texas’s Open Beaches Act (‘OBA’) is clearly not to obtain reasonable compensation for a taking of properties either actually or nominally purchased by Severance, but is to eviscerate the OBA, precisely the kind of legislation that, by its own declaration, the Foundation targets.
In November of 2009, the Texas Supreme Court heard the arguments in Severance versus Patterson. For almost a year, everyone, including the Surfrider Foundation who had filed an Amicus Brief supporting the State’s position, waited for the ruling and on November 5, the Court handed down what is a confusing and contradictory decision that has already sent a quake through beach communities along the Texas coast. The decision, which concentrated on Galveston only, tried to differentiate natural erosion. It declared that since the beaches on Galveston Island were deeded under Republic of Texas Land Grants and not Spanish Land Grants, which would have put them under Spanish Common Law, a public beach easement never existed, therefore the only public beach was between the mean low and mean high tide line. It went on to say that properties that found themselves on the public beach as a result of chronic everyday imperceptible erosion were susceptible for removal but those that found themselves there as a sudden movement of the vegetation line, the landward boundary of the public beach easement, or the tidal boundary were not. A sudden movement called avulsion, according to the court, was caused by a storm event, though what constituted a storm was not clearly defined.
The majority decision states, "There is no support presented for the [the easement] that, during the time of the Republic of Texas or at the inception of our State, the State reserved the oceanfront for public use. In fact, as discussed above, the Texas Legislature expressly disclaimed any interest in title obtained from the Jones and Hall Grant after our State was admitted to the Union...On this issue of first impression, we hold that Texas does not recognize a 'rolling' easement on Galveston’s West Beach…The State, as always, may act within a valid exercise of police power to impose reasonable regulations on coastal property or prove the existence of an easement for public use, consistent with the Texas Constitution and real property law”.
In a stern dissenting opinion, however, Justices Medina and Lerhmann state, "The OBA recognizes the dynamic nature of beach boundaries by defining the public beach by reference to the vegetation line and tide lines, which shift with the movements of the ocean, whether those movements are gradual from erosion or dramatic from storm events. Requiring that existing easements be re-established after every hurricane season defeats the purpose of the OBA: to maintain public beach access." They go on to say, “The state is not responsible for the ocean’s movement and therefore owes no compensation when enforcing this existing easement. Because the Court requires the state to re-establish its easement after avulsive events and to pay landowners for risks they have voluntarily assumed, I must dissent. I would instead follow the constitution and the long-standing public policy of this state and hold that the beaches of Texas are, and forever will be, open to the public.
Ironically, Carol Severance provides the best example of what Justice Medina alludes to above. She accepted a FEMA buyout of homes damaged or taken by Hurricane Ike. These homes were to be bought at pre-storm market values. Severance, who has already been paid for two properties totaling $1 million dollars, has one approved for sale at $336,000 and the one that was specifically caught up in this case, though valued at $546,000 for 2008 tax purposes, has been approved for an $813,000 buyout. So much for property rights and responsibility. This in itself sets a dangerous precedent for homeowners being rewarded for the risky behavior of building too close to the shore. Especially in a time when the US and Texas are looking at huge budget deficits.
Perhaps the most confusing part of the judgment was that the majority says that an easement, such as the public beach easement, can be dynamic but not rolling. The majority seems to want to have it both ways; that the easement cannot roll with the changing coast BUT is expected to change with the dynamic coastline.
The Texas Supreme Court decision is not the end of this coastal drama that Texas beach users, public beach advocates and even front row beach property owners find themselves in however. On November 15th, the Texas Land Commissioner announced the cancellation of a $40 million beach renourishment project that would have widened six miles of beach on the west-end Galveston beaches. This project would have provided protection for homes that found themselves uncomfortably close to the Gulf of Mexico after Hurricane Ike in 2008. The GLO interpreted the Supreme Court ruling to mean that no public land existed seaward of the seawall. According to an official Texas General Land Office press release, “The Court ruling called into question the definition of the public beach easement, a key provision of the Texas Open Beaches Act. The Court ruled there is no public beach easement on the West Galveston Island beach targeted by the Land Office for renourishment. Without that easement, the Constitutional prohibition against spending public money to improve private property made the project impossible."
The release goes on, "It's ironic that the Pacific Legal Foundation's actions will harm the beachfront property owners they claim to defend," Patterson said. "Without this beach project, beachfront property owners will eventually have a lot less property to own when erosion claims their property as state-owned ‘wet beach.'” Patterson went on to say, "You might win in court, but you can't litigate Mother Nature."
In the wake of the announcement of the cancellation of the Galveston Project, Galveston City Leaders held an emergency meeting to address the issue. During this meeting, Property Owners proposed that a fixed easement be established so they can get the sand they need to protect their properties. The Texas General land Office took the position that they would give the property owners 30 days to come up with the signatures of all the affected property owners but would only accept the reinstatement of the rolling easement that is the Open Beaches Act defines. In a Houston Chronicle article on Nov.25th, Commissioner Patterson is quoted as saying, "They were content to have a beach renourishment project back when we had a rolling easement," he said, "If they want a static easement, they are upping the ante." Shulz, a representative of some of the property owners has made it clear that this would not be acceptable. This group can be considered enemies of public beach rights in Texas as a static easement would eventually erode away and, once again, the public would be left with no beach.
For now, with everyone in their respective corners, the Texas General Land Office and Commissioner Patterson are moving forward to petition the Texas Supreme Court for a rehearing on the case before it is kicked back to the U.S. 5th Circuit Court of Appeals for their ruling. The Texas Chapters of the Surfrider Foundation will, once again, be filling an Amicus Brief to support the rolling public easement and will have a large presence at any future hearings.
Severance versus Patterson represents nothing less than the future of Texas Public Beaches and how they are managed. In 1959, when the Open Beaches Act was ratified, there was little development along Texas’ barrier islands and now some places are overdeveloped. If the current Texas Supreme Court decision is allowed to stand and is applied to the entire Texas Coast, then places where the general Texas public is allowed to spend their days enjoying the beautiful natural resource that are our beaches will be drastically reduced as property owners, homeowner associations and others begin fencing off sections of beach and restricting usage. Many beaches will become completely inaccessible at high tide as you will only be able to travel within that tidal zone to get to an area of beach you desire. It can be argued that at high tide, the public would not be allowed on the beach at all. We are quite possibly about to lose the free and unrestricted right to access and use of all of Texas’ beaches that generations of Texans have enjoyed for 200 years. In 2009, 80% of Texas voters thought this important enough to write into the State Constitution.
As surfers, fishermen, beach lovers and as citizens of the great State of Texas, we cannot let this stand. To try and litigate policy that attempts the boundaries of the public beach within a static boundary is as illogical as telling a river it cannot shift its boundaries. Send support to the Texas General Land Office and your local Surfrider Foundation Chapters and beach access advocacy groups through phone calls, emails and letters letting them know your support of Texas Open Beaches and the importance in maintaining them as is.
This fight is far from over! Texans are known for defending what they think is right and fair and there is nothing more right than the free and unrestricted access and use of our beaches! I for one will not be the one that has to sit down with my son 10 years from now and say, “Believe it or not, we used to have the right to go anywhere along these beaches we wanted and explore. In fact, when it came time, I had the chance to defend that right and I decided the fight was just too big and I wasn’t the right person for the job.” The fight is not too big, it’s only as big as Texas and YOU are the right person for the job! After all Texas, it’s YOUR beach!