Open beaches case may be moot
Readers may recall that a lawsuit brought by a California-based “public interest” law firm resulted in a ruling by the Texas Supreme Court that sudden (the technical legal term is “avulsive”) changes in the profile of the beach due to storms could erase public rights of access that have been recognized by Texas courts in several precedents and in the state constitution. This holding, which favored private property rights over public rights, created considerable controversy. The State asked for a motion for rehearing, which was granted. The case was reargued on April 19, and not a peep has been heard from the Court over the past two months.
Subsequently, the case has taken a course favorable to the protection of public rights. The Attorney General’s office sent the following letter to the Court upon learning that the plaintiff had sold all of her beachfront property:
The State respectfully submits this letter to notify the Court that Carol Severance has rendered this case moot by selling her last remaining property at issue in this lawsuit. We respectfully urge the Court to follow the established practice of vacating the last opinion—issued before this Court granted rehearing—and returning this matter to the U.S. Court of Appeals for the Fifth Circuit to dismiss as moot.
Assuming that the Court does as the AG’s office has asked, the State and the people of Texas will win a significant victory. However, if the case is indeed moot, the legal issues–foremost among which is whether the public’s easement to have access to the beach “rolls” or shifts to follow the changes in the shoreline–remain in legal limbo, to be decided at some future date. For now, it seems as if public rights are secure once more, notwithstanding the Court’s earlier decision to eviscerate them.
Tagged: open beaches act
Jed says:
why would anyone want to go the beach in texas anymore, anyway?
not enough toxins in your own town?
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anon-p says:
I think a reasonable case can be made for the public right to access winning out over private right if the change in shoreline is apparently permanent. Some legal definition for “apparently permanent” would be nice. Something along the lines of, “a ten or more foot average change in shoreline every hundred yards one year following a storm event” or somesuch.
What seems unaddressed by the law is when a storm washes away all the grass, leaving nothing but exposed sand and dirt, but does not change the shoreline, and somehow the public right to access is supposed to now include all that “new” exposed area. That seems too invasive of private property rights and outside the original envisioned intent of the law.
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WURSPH says:
But those rich WEST END property owners and developers won’t contribute to a court that lets the people own the beaches….That is why this court is tempted to let its earlier opinon stand…
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Briscoe Democrat says:
Maybe the Texas Supreme Court doesn’t have time to focus on the Open Beaches case.
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anita says:
I spent the day on the beaches of South Padre Island discussing this case with a former member of the judiciary, a respected former member of one of our courts of appeals.
The original decision reached by the Court is bizarre and far-fetched. In years past, the Court would defer to the Legislature on issues of policy such as this. Sitting on the beach with thousands of others, knowing that the enjoyment of the natural environment that we all as Texans take for granted (both the easement and the access to such) was very much at risk, makes this Court seem tone-deaf.
When do you think the last time a member of this Court took his family to a public beach? Viewing the world through the prism of purist private property rights groups clearly has it’s risks.
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