Thursday, November 19, 2009

Battle for the Beach: Property Rights and the Open Beaches Act

Public access rights to privately-owned beachfront property has been a contentious land use issue for decades.  I mentioned that on Election Day, on my ballot was not just the mayoral election (which always has some land use issues in the Unzoned City), but also a number of Propositions for amendments to the Texas state constitution.  Several of these propositions (all of which passed) involve property rights or land use issues, and one in particular deals with access to beach lands.

Proposition 9 appeared on the ballot as follows:

"The constitutional amendment to protect the right of the public, individually and collectively, to access and use the public beaches bordering the seaward shore of the Gulf of Mexico."

The actual language of the new state constitutional amendment includes the following:

SECTION 1. Article I, Texas Constitution, is amended by adding Section 33 to read as follows: Sec. 33.

(a) In this section, "public beach" means a state-owned beach bordering on the seaward shore of the Gulf of Mexico, extending from mean low tide to the landward boundary of state-owned submerged land, and any larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico to which the public has acquired a right of use or easement to or over the area by prescription or dedication or has established and retained a right by virtue of continuous right in the public under Texas common law.

(b) The public, individually and collectively, has an unrestricted right to use and a right of ingress to and egress from a public beach. The right granted by this subsection is dedicated as a permanent easement in favor of the public.

(c) The legislature may enact laws to protect the right of the public to access and use a public beach and to protect the public beach easement from interference and encroachments.

(d) This section does not create a private right of enforcement.

This amendment will not create any new substantive state law; it primarily serves to constitutionalize provisions of the Texas Open Beaches Act.  The state's General Land Office interprets the TOBA to mean that the public has a "rolling easement" over the dry-sand beach up to the vegetation line. 

This interpretation of the TOBA--and by implication, the new state constitutional amendment--is being litigated by Carol Severance (represented by the Pacific Legal Foundation), who owns beachfront property on Galveston Island where the vegetation line was altered by Hurricane Rita in 2005 (more damage was done last year by Hurricane Ike!).  The case, Severance v. Patterson, No. 0-0387, is being heard in oral argument today in the Supreme Court of Texas, on certified questions from the U.S. Court of Appeals for the Fifth Circuit.

In the Fifth Circuit opinion authored by Judge Edith Jones, the court held that it was a question for the state courts whether this "rolling easement" comes from the statute or from common law easements by dedication, prescription, or customary rights.  Read a story about the Fifth Circuit's decision in the Texas Lawyer article Battle for the Beach, including my $0.02.  It was an interesting case with the court holding that Severance stated a *Fourth Amendment* claim for unreasonable seizure of her land, and with a strong dissent from Judge Wiener. 

The result of the case will have an impact on how the state may assert public rights to beach access and on the private rights of landowners along the vast Texas Gulf Coast, and perhaps in other states as well.  Copies of the merits and amici briefs are here.  I will be watching the oral argument on St. Mary's Law School's excellent website with live and archived audio and video webcasts of the Texas Supreme Court sessions.

Matt Festa

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Tracked on Nov 19, 2009 11:11:20 PM