Cabin fever
Wed December 17, 2008 11:29 am

The story about Kino Flores's cabin in today's American-Statesman brings back some memories of the time when I worked as an attorney in Senator Babe Schwartz's office. During the interim before the 1973 session, Babe held hearings about environmental issues along the coast. Jack Giberson, the longtime chief clerk at the General Land Office, testified about the problem of "squatter shacks" along the Intracoastal Canal. The Corps of Engineers periodically dredged the canal and deposited the spoil along the route, creating small islands. Enterprising folks built structures on these islands and claimed them as their own, as fishing retreats. Legally, however, the submerged lands that the spoil rests on, and hence the islands themselves, and the structures, are owned by the state.

Giberson referred to these cabins as "squatter shacks," but shacks they were not. Some were quite substantial—multiroom structures on stilts. The U.S. Army Corps of Engineers testified that they were navigation hazards, because they were vulnerable to destruction by storms. Parks & Wildlife said they were threats to water quality. But the Land Office didn't have the funds to remove them, and the local legislators didn't want to incur the wrath of the squatters.

As I recall, we dealt with problem in the Coastal Zone Management Act of 1973. Squatters who claimed possession of existing cabins could apply for a permit that amounted to a lease. They could not transfer the permit.  They had to pay an annual fee to the General Land Office. They had to comply with health and safety standards. If the structure was damaged by storms, they could not rebuild, and the occupants had to remove the debris. And that was the last that I thought about the issue until I read about Kino's cabin.

I'm not surprised to learn that the occupants of these cabins regarded their permit from the Land Office as the equivalent of fee simple title. It was true when I was working on the problem 35 years ago. The squatters of that era felt that these island and these cabins were their property. They believed that they had acquired it by adverse possession, although you cannot claim adverse possession against the state. We actually worried that if somebody from the Land Office took a boat out to one of the islands to try to get a shack removed, he might get shot.

I learned a lot from that episode. I learned that the law doesn't mean a lot if you can't enforce it.  I learned that the total absence of legal title does not prevent a willing buyer and a willing seller from making a deal. I  learned that the bureaucracy would rather not confront a problem, if taking it on  creates a political problem. I learned that a state agency takes the view that it is going to be around forever, but issues come and issues go. I think that the law we passed was the right thing to do, but I also feel, these many years later, that if we had done nothing at all, the world would not take much notice.

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