When I was Texas land commissioner, I carried on the fight of my predecessor Bob Armstrong, state Rep. Bob Eckhardt, D-Houston, state Sen. A.R. “Babe” Schwartz, D-Galveston, and other dedicated people to ensure that the Texas Open Beaches Act preserves access to our public beaches. It was never hard to know what the people of Texas wanted. In 2009, state Rep. Richard Raymond, D-Laredo, authored a constitutional amendment that guaranteed the permanence and provisions of the Open Beaches Act. With overwhelming majorities, the House and Senate each passed the amendment and submitted it to voters for their final approval or rejection. That summer, voters approved the amendment with 76.9 percent of the vote. I thought the battle was won. Little did I know that ideological politics and an outburst of judicial activism would seek to revoke 200 years of Texas heritage and law, the clear will and direction of the Legislature and the voters, and the constitutional rights of all Texans to use and enjoy the public beaches, for all time.
On March 30, five justices on the Texas Supreme Court affirmed an earlier ruling that the 53-year-old Open Beaches Act does not apply to three properties on the West Beach of Galveston Island that were then owned by an absentee landowner, a California lawyer named Carol Severance. She has since sold the properties. Severance was backed in her lawsuit by the California-based Pacific Freedom Foundation, which favors itself with the slogan “Rescuing Liberty from Coast to Coast.” The ruling means that the subsequent owners and some neighbors on the west end of Galveston Island can now fence off the dry beach and deny public access. It could well mean that litigious chaos ensues along our 367-mile shoreline and the Open Beaches Act perishes trial by trial, the proverbial death of a thousand cuts.
The state owns the submerged lands out to 12 miles in the Gulf of Mexico. Our continual use of the beaches throughout Texas history and an abundance of case law holds that private individuals can own beachfront property up to the “mean high tide,” or the seaward vegetation line of the sand dunes; however, a historically recognized public easement reserves the dry beach for public use and enjoyment. The crux of this issue is what happens when the shoreline is drastically altered by “avulsion” — violent storms such as hurricanes. (The legal term also applies to inland water and property law, as in rivers changing their courses.)
Guided by English and American common law, a history of continual public use, the 1959 Open Beaches Act, a 1964 Supreme Court ruling, numerous supportive rulings and the 2009 Texas constitutional amendment, the General Land Office maintains that the law provides for a “rolling easement” of the public’s dry beach: If a landowner assumes the well-known risk of building on a beachfront property and a storm shoves the vegetation landward, their structures cannot impede or endanger access to the public beach. For example, if I sell my neighbor a tract of land behind mine, and my neighbor has no access to use and enjoy his property, the neighbor will have an implied easement to cross my land. In the same way, throughout our history Texans have understood that they can roam up and down the beachfront, so anyone purchasing beachfront property should not be surprised that the right to roam the beachfront must “roll” with avulsive changes, and an easement is implied to serve the public good.
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In 1987, when I was land commissioner, Tropical Storm Frances resulted in the Land Office’s determination that 107 beachfront homes had been relocated on the public beach, seaward of the vegetation line. The structure at issue in this case was one of those beachfront homes. In 2004, Land Commissioner Jerry Patterson and his Land Office staff again determined that the property on Kennedy Drive on West Beach was “wholly or in part” on the dry beach, but they did not yet believe it was a safety hazard, and it was subject to the agency’s two-year moratorium on orders to move privately owned structures back behind the vegetation line. In 2005, Severance purchased three properties on West Beach, including the house and lot on Kennedy Drive. When she bought the property she signed a real estate contract that by law, under the Open Beaches Act, required her to acknowledge disclosure to her that shoreline erosion might result in her structure winding up on the public beach, and the state was empowered to remove it, if necessary. Later that year, Hurricane Rita battered the island, and in 2006 the Land Office informed Ms. Severance that her property was now entirely seaward of the vegetation line and that the Land Office might take action to remove it. Later in 2006, when the Land Office’s moratorium expired, Severance received two letters informing her that the Kennedy Drive home had to be removed from the dry beach; one offered her $40,000 if she acted before October of that year. She and the Pacific Freedom Foundation then sued Commissioner Patterson and the state on grounds that the Open Beaches Act and the Land Office order violated her private property rights under the 4th, 5th, and 14th Amendments to the U.S. Constitution.
The litigants pressed these constitutional issues in federal court, and the U.S. 5th Circuit Court of Appeals certified the “rolling easement” question to the Texas Supreme Court. The case was first argued before the Supreme Court in 2009, and it ruled in her favor in 2010. On rehearing and after Ms. Severance had sold the properties in question, five of our eight Supreme Court justices (one did not participate) definitively ruled that a rolling beach easement does not exist under Texas law, and that in November 1840 the Republic of Texas surrendered any and all claims to the West Beach when it sold the “Jones & Hall Grant.” Two of the three West Beach properties at issue in this case lie within that land grant. Writing the majority opinion, Justice Dale Wainwright asserted “there is no support presented for the proposition that, during the time of the Republic of Texas or the inception of our State, the State reserved the oceanfront for public use.”
Nothing could be further from the truth.
After Eckhardt won election to Congress in 1966, Sen. Schwartz and his staff took the lead on Texas coastal policy and codified provisions of the Open Beaches Act. Schwartz exclaimed that the Severance ruling “ignores common law dating to the Justinian Code, including the Bible, where Peter dried his nets on the shore.” The precedent is certainly rooted in English common law. What was an English common? Well, it was a public place in each township where all citizens could mingle and converse, and no individual however wealthy or titled could turn them away. The same legal tenet applies to Texans’ rights to use and enjoy unobstructed Gulf Coast beaches.
Writing the dissenting opinion, Justice David Medina correctly cited the Supreme Court ruling in Seaway Co. v. Attorney General in 1964. Empowered by the recently enacted Open Beaches Act, Attorney General Will Wilson and his staff of attorneys ordered Seaway’s barriers removed from the beach, prevailed in a jury trial in district court, and four years later won again when Seaway and its backing title company appealed to the Supreme Court. The Attorney General proved the beaches’ continued public use by presenting historical evidence ignored by these five Supreme Court justices in 2012. In 1916 an authoritative historian, Dr. J. O. Dyer, recorded that as early as 1836 a ferry ran west from Galveston Island across San Luis Pass, and in 1838 the Congress of the Republic authorized establishment of a mail route that utilized the beach and ran every two weeks from Quintana to Galveston by way of San Luis. In the course of the Seaway lawsuit, Joe Osborn, an Austin attorney who was then an assistant attorney general under Will Wilson, found in the Galveston’s Rosenberg Library an April 13, 1841 issue of the San Luis Gazette that tells of a stage coach line running from Galveston to Velasco by way of San Luis; the story described the horses’ hooves wetted by sprays from the Gulf and the musical sound of the waves. (San Luis, a town on San Luis Island just west of Galveston Island, vanished with the island in a storm about 1843 that widened San Luis Pass to what it is today. That is avulsion in the extreme.)
The State Archives revealed nine maps between 1845 and 1874 showing a beach road extending from Galveston, by ferry across San Luis Pass, and then on to Velasco; some extended the beach road as far as Quintana and Matagorda. Based on that history of continued public use, the 1964 Supreme Court upheld the jury verdict which “encompassed an easement in the public to use the area of land adjoining the waters of the Gulf of Mexico from the line of low mean tide to the seaward side of the vegetation for travel and camping and to make use of the area so the members of the public could fully pursue their rights to swim, fish, and boat in and on the Gulf waters.”
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Justice Medina, in his dissent to this Court’s ruling, wrote, “Easements may be express or implied. Implied easements are defined by the circumstances that create its implication.” Justice Medina continued, “To apply static real property concepts to beachfront easements is to presume their destruction. Hurricanes and tropical storms frequently batter Texas’s coast. Avulsive events are not uncommon. The Court’s failure to recognize the rolling easement places a costly and unnecessary burden on the state if it is to preserve our heritage of open beaches.” Justice Medina also wrote the dissenting opinion when the Court first ruled in Ms. Severance’s favor in 2010. He stressed the 2009 constitutional amendment that “mirrors the policy and language of the OBA [Open Beaches Act]. The amendment adopts the OBA’s definition of ‘public beach’ and reiterates that the public’s easement is established under Texas common law. It further acknowledges the permanent nature of the easement. To be consistent with the Texas Constitution, these easement must roll with the natural changes of the beach.” In that opinion, he also noted the blistering rebuke of U.S. 5th Circuit Court of Appeals Justice Jacques Weiner, who in his dissent questioned the litigants’ motives, writing that the legal maneuvering had the effect of “enlisting the federal courts, and via certification [of the federal court’s questions], the Supreme Court of Texas, as unwitting foot-soldiers in this thinly veiled Libertarian crusade.” Justice Medina concluded in his most recent dissenting opinion, “The right to exclude the public from the dry beach was never in the landowner’s bundle of sticks when she bought the property.”
This is not a partisan issue. All nine of the elected Supreme Court justices are Republicans. Attorney General Greg Abbott, also a Republican, said of the 2010 Court ruling: “With the stroke of a pen, a divided court has effectively eliminated the public’s rights on the dry beach. [T]he majority could only cite — nothing. Not a single case, rule, principle, empirical study, scientific review, or anything else.” Land Commissioner Jerry Patterson, another key Republican, warned that the Court’s ruling this March could mean that the Open Beaches Act, at least on Galveston’s West Beach, “is dead. This is truly a sad day.”
What is the result of this judicial fiasco? Patricia Kilday Hart wrote in the Houston Chronicle: “Already, the decision has been disastrous for Galveston. [Commissioner] Patterson halted a $40 million beach re-nourishment project since tax money can’t exactly be spent hauling sand to private beaches. Whether tax money can be spent cleaning up after the next natural disaster remains to be seen.” This all began with three properties by an absentee landowner in California who bet wrong on weather in the Gulf of Mexico, and then engaged the attorneys and resources of a California foundation on a coast-to-coast mission under the banner of private property rights. But whose property rights have been violated? Yours and mine, and our children’s, and our grandchildren’s. If our Supreme Court can overrule two centuries of Texas heritage, numerous common-law and Supreme Court precedents, half a century of definitive legislation, and a constitutional amendment approved by over three-fourths of the voters, what more does it take to define judicial activism? But there are rays of hope in the murk of this ideological arrogance. In the welter of lawsuits sure to come, the five justices may reconsider the overwhelming evidence and Texas tradition and hold that this ruling applies only to lots on Galveston’s West Beach. And if not, well, elected officials do lose elections. I can testify to that. We have to let our voices be heard: that we value our precious Texas Gulf Coast beaches, that this ruling is just plain wrong, and we’re not going to stand for it.
Garry Mauro was Texas Land Commissioner from 1983 to 1995. Jan Reid wrote speeches on coastal issues for Commissioner Mauro and is the author of twelve books, among them the forthcoming Let the People In: The Life and Times of Ann Richards.
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