Out of Beach?

Coastal access is pretty much the only area of property rights in Texas where the public interest has always trumped the private interest. That may finally be eroding.

June 2011By Comments

I grew up in a house two blocks from the Gulf of Mexico, in Galveston. Before I could drive, I would walk to the beach, what there was of it. Decades of wave action against the granite rocks at the base of the seawall had carried off much of the sand, leaving a narrow longshore strip that was washed continuously by the tides. I liked to walk out a few feet into the water, where the incoming waves exhausted themselves against the gradient of the shore, and wriggle my feet into the wet sand. It was a game of sorts, the object being to see how far I could sink into the muddy floor of the sea. The deepest I ever got was up to my ankles.

Over the years, countless Texans have enjoyed the seashore in their own way, in part because Texas, bastion of private property rights that it is, nevertheless has the most public-spirited beach access laws in the country. Because Galveston is so close to Houston, its beaches get the most traffic (in the early days of the Republic, a stagecoach route actually ran along West Beach, as did a mail route, and more than a century later I got my first driving lessons on the hard-packed sand), but Surfside Beach, Port Aransas, and the north and south ends of Padre Island are not far behind. When it comes to protecting the public interest, Texas doesn’t get much right—but it has always been right about this. Unlike California, where access to beaches is limited to parks and wet sand, Texas has almost no restrictions on public access to the coast.

Ownership of the beach is determined by two boundaries, the vegetation line and the line of mean high tide, the more important of which is the latter. According to state law, the line of mean high tide (which is measured across an 18.6-year cycle) constitutes the border between public and private ownership. The state owns everything seaward of the high tide line in trust for the public; landward, the beach can be privately owned, but up to the line of vegetation it remains subject to a public access easement. Historically, the state has recognized that this easement—the right to cross private property in order to reach the beach—has been established by the continuous use of the beach by the public over the many decades since the coast was first settled. In case after case, Texas courts have upheld this right. Public beach access is also enshrined in a statute called the Open Beaches Act, passed in 1959, and in the state constitution.

I would like to report, as summer begins and our thoughts turn to the coast, that the public’s right to use the beach, on either side of the mean high tide line, is secure for all time, but alas, this is not the case. More and more of Galveston Island’s beaches, as well as those farther down the coast, are now bordered by high-end subdivisions and condos, and collisions between the public and private owners are inevitable. A recent decision by the Supreme Court of Texas came down squarely on the side of private interests. The case, Severance v. Patterson, would require the public to reestablish its right to access the beach after every hurricane that changes the configuration of the shoreline. In other words, after a big storm causes the lines of mean high tide and vegetation to shift, the public would have to start from scratch and exercise continuous use of the beach until such time as they have established a new easement, a process that could take many decades. In the meantime, access would be restricted.

The origin of the Sever­ance case was Hurricane Rita, which battered the coastline in 2005. A few months earlier, a woman named Carol Severance had purchased beachfront property on Galveston Island’s West Beach. The turbulence of the hurricane caused the vegetation line to retreat, leaving Severance’s rental home stranded on the beach, where it interfered with the public easement. The General Land Office notified Severance that the state could seek to forcibly remove structures on the public beach, at which point she filed suit against the state in federal court. Ultimately, the U.S. Court of Appeals for the Fifth Circuit asked the Texas Supreme Court to determine questions of state law.

Anybody who buys beachfront property in Texas is informed that the public has established an easement that guarantees the right of access to and from the beach and across their property. Nonetheless, the argument put forward by Severance’s legal team (a property-rights public-interest group from, it seems ironic to note, California) was, in effect, “What public easement?” The portion of the beach between her property and the line of mean high tide—the point at which private ownership ends—had been devastated by a series of storms. When the beach was submerged by high water, their argument went, the easement lapsed and the public lost its right of access. To regain its property right, the public would have to start anew the lengthy and difficult process of building a claim for an easement.

You don’t have to have grown up two blocks from the beach to know that the seashore is a dynamic environment. The only consistent aspect of it is change—not just the constant little shifts of tide, wind, and waves that continuously alter the landscape but also the occasional dramatic transformations wrought by storms. The court’s opinion, handed down last November, differentiates between these gradual and sudden changes, but while it makes clear that the former do not challenge the public’s right of access, it opens the door for the latter to do just that. This is the looming threat to the public’s right of access: If the court’s decision is allowed to stand, a hurricane could swallow a huge chunk of beach and cause the public’s easement to be erased. As the court sees it, if the sand is carried off into the sea, the easement ceases to exist (unless or until the public, over time, manages to reestablish it, which is very difficult, particularly in an era when property rights are regarded as sanctified).

The folly in this ruling should be obvious. The public easement is not about any particular grains of sand. It attaches to the beach as a whole. This is why the idea of a “rolling easement” has been recognized in several previous Texas cases (though not this one). In order to mean anything, the public’s easement must be as dynamic as the beach itself. As Justice David Medina cited in his dissent: “An easement fixed in place while the beach moves would result in the easement being either under water or left high and dry inland, detached from the shore. Such an easement, meant to preserve the public right to use and enjoy the beach, would then cease functioning for that purpose.” Yet this is exactly what will happen if the Supreme Court follows the majority opinion in the case.

Yielding to pleas from affected parties, ranging from surfers to the City of Galveston to Jerry Patterson, the feisty commissioner of the General Land Office, the Supreme Court granted a rare motion for rehearing, which took place on April 19. I attended the oral arguments, and the courtroom was packed—hardly normal for the Supreme Court. But this is no ordinary legal dispute. Where the court went wrong is not only that it chose property rights over public rights but also that it sided with the party who bought coastal property after being provided full notice of the perils of seaside ownership, the existence of a public easement, and the state’s Open Beaches policy. On the other side, the court poured out the people of Texas, who had done everything necessary to validate their easement, only to have it taken away. If anyone’s property was usurped without compensation, it was the public’s. Severance gambled and lost, only to have the court bail her out, while depriving the public of a property right it had established almost two hundred years before she came along.

We will now have to wait and see what the Supremes decide to do next. Patterson has written the court that he considers its ruling in Severance to be “terribly wrong” and warned of the consequences that could follow—one being that if the beach becomes private property, as the court contemplates, the state will not be able to perform sand nourishment projects to stabilize the beach, because the state constitution prohibits public benefits for private property. The result would be still more beach erosion, which would threaten private property. His concern is that Severance’s counsel, whose public-interest law firm vigorously defends property rights, seeks to “Californize” the Texas coast by confining public beaches to parks and wet sand.

Some 42 years ago, fresh out of law school, I went to work as counsel for the Interim Beach Study Committee of the state Senate. I wrote a 73-page report about public rights (which, I was surprised to discover, is part of the record in the Severance case). I believe that the opinion of the Supreme Court in Severance is a grave disservice to the millions of Texans who are drawn to the seashore every year. If it is allowed to stand, the public’s right to use the beaches will be at risk, over and over again, every time a major storm changes the profile of a beach. And I wonder: If the court rules for Severance, will my children, will their children—will any Texan—be able to stroll down to the nearest beach and stand in the surf, wriggling their toes as their feet are gradually sucked down into the soft wet sand?

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