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Texas Open Beaches Act Takes a Hit

May 31 2012 | Beach Access, Legal,
by Angela Howe

6/6/12 Update: The Texas General Land Office Coastal Resource Division held a Workshop in Galveston this week to affirm their commitment to provide beach management services on Texas public beaches.  To support Surfrider Foundation's efforts in this campaign, click here.

 

The Texas Surfrider Chapters have worked since their existence to defend the beach access provisions found in the Texas Open Beaches Act.  On May 21, 2012, the Fifth Circuit Court of Appeal ruled to agree with the Texas Supreme Court to declare “that Texas law does not recognize a ‘rolling easement’ created by avulsive events affecting the dry beach of Galveston’s West Beach.”  This ruling has reversed the progress of Texas beach access case law back to the early 1900’s.  Instead of recognizing dynamic coastlines with sea level changes, the Texas law now may be now we interpreted to restrict the public beach easement so that it is static, and perhaps even trapped under water.

The good news is that the Severance v. Patterson ruling of the Texas Supreme Court is arguably only relevant to the Galveston West Beach area since the Court went to great pains to analyze the Galveston Land Grant and the facts surrounding this beach specifically.  The Court was remiss, however, in their lack of analysis of customary usage of the area.  Texans have used their beaches for generations for recreation (including as roads to drive on), fishing, to foster economic tourism, and in other community-serving capacities.

On October 12, 2009, the Surfrider Foundation entered an amicus curiae brief to the Texas Supreme Court in support of a strong interpretation of the Texas Open Beaches Act.  The Severance v. Patterson case was an effort to launch a direct attack on the Texas Open Beaches Act. The Surfrider Texas Upper Coast Chapter issued the amicus brief in support for the General Land Office (“GLO”) and Commissioner Jerry Patterson in defending the right of public citizens to enjoy beach access, and the constitutionality of the Texas Open Beaches Act, which provides for enforcement of rolling public access easement along the Texas coast. Even though numerous intermediate courts of appeals have protected the public’s right of beach access, the Texas Supreme Court decided to contravene this established body of case law. At the request of the Fifth Circuit Court of Appeals, the Texas Supreme Court addressed the constitutional questions and the Open Beaches Act. The issues presented in the case are critical to the rights of all Texans and visitors to enjoy Texas beaches, and crucial to the economies of coastal counties and cities.

The Fifth Circuit Court of Appeals ruling affirming the Texas Supreme Court’s interpretation of the Texas Open Beaches Act to exclude the theory of “rolling easements” could undermine the state's ability to seize homes that end up on the beach even though they were purchased with this known risk. In an additionally surprising move, both the Texas Supreme Court and Fifth Circuit waived the question of mootness despite the fact that Carol Severance had sold her house before the case was resolved.  Now that the Fifth Circuit has ruled, there is still a chance that the case could go up to the U.S. Supreme Court if the State of Texas and General Land Office so move.  

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