Their names are Nathan Hecht and Don Willett, and they are the only two of the five justices on the Texas Supreme Court who (1) v0ted to to protect the private property rights of beachfront landowners instead of protecting long-established public rights of access; and (2) are up for reelection this year. Hecht has a Democratic opponent, Michele Petty, and Willett has a Republican primary opponent, a former member of the Court, Steve Smith. It should come as no surprise to courtwatchers that Hecht and Willett, along with three other justices who are not on the ballot, voted as they did. The Texas Supreme Court is notorious for being result-oriented; that is, all too often the justices vote their politics, not the law. They were never going to side against private property rights, not this court, not in this political climate. (The case might have turned out differently had Chief Justice Wallace Jefferson not had to recuse himself; ironically, the recusal was necessary because his wife worked for the General Land Office, whose commissioner, Jerry Patterson, is the named defendant in the case.) Constitutional law, statutory law, and the common law in Texas all recognize that the public has established the right of access to the beach seaward of the vegetation line that arises by evidence of continuous use for more than a century. The Supreme Court wiped out these longstanding protections of public rights with a finding that a sudden change of the beach covered by the easement destroys the existing easement, and the public can only reestablish its right of access through another long sustained period of public use. No one living today would be around by the time another easement could be established. The problem with the Court’s ruling is that the beach is dynamic, not static. It never understood, or tried to understand, that the line of mean high and low tide and the vegetation line are ever-changing. The public easement does not attach to a particular area of the beach, so that if a certain plot of sand disappears, that is sufficient to destroy the public’s right of access. The environment of the seashore is such that the beach is constantly in motion; it shifts, or “rolls,” to accommodate public access. But the Supreme Court majority chose to treat the beach as if it were static and refused to recognize the concept of a rolling easement. By the time the Supreme Court took up the case on a motion for rehearing, Carol Severance, the property owner who brought the lawsuit against Patterson, no longer owned the land on which her home had been built. (In fact, the state had bought it with FEMA dollars, at a tidy profit for the owner.) The state argued, therefore, that the case was moot, that there was no longer a controversy, and that the Court had no reason to rule against the state and the public. The Supreme Court could have declared the case moot, but it chose instead to make a political statement for property rights. That’s the definition of “result oriented.” This is a terrible decision that will have ramifications for tourism and economic development that will adversely affect coastal communities for decades, and the members of the Court who perpetrated it deserve to be defeated.
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