SCOTEX: No More Public Beach Access On Galveston

[editor]

I'm surprised I haven't seen more about this. Or maybe I've just been reading the wrong sources. But it looks like a new court ruling could mean the eventual end of the Open Beaches act in Texas. Here's a press release from the Texas General Land Office

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Texas General Land Office

News Release

Friday, March 30, 2012

Supreme Court kills Texas tradition of open beaches on West Galveston

Open Beaches Act gutted, Constitutional amendment and centuries of tradition tossed aside

AUSTIN — The Texas tradition of guaranteed public access to the beach died today for Galveston’s West End with the Supreme Court reaffirming their prior ruling in favor of a California divorce attorney who bought rental properties on the beach.

“It seems that the Open beach Act — at least for Galveston’s West End — is dead, thanks to the Supreme Court,” Texas Land Commissioner Jerry Patterson said. “This is truly a sad day.”

Justice Dale Wainwright delivered the court’s 5-3 opinion. Justices Debra H. Lehrmann, David Medina and Eva Guzman dissented. Justice Wallace Jefferson did not participate.

Patterson said the ruling ends any future possibility of much-needed beach renourishment projects for Galveston island’s rapidly eroding west end and will make it impossible for the state to step in quickly to clear the beach of debris after the next hurricane demolishes the front row. After Hurricanes Ike and Dolly, the General Land Office spent $43 million to remove debris from the state’s beaches and bays.

“This ruling is bad news for Galveston,” Patterson said. “It also gives a pretty big club to anyone who wants to challenge the Texas Open Beaches Act anywhere else along the coast.”

In 2005, California resident Carole Severance purchased several houses on the beach in Galveston. After Hurricane Rita hit that summer, the General Land Office sent Severance a letter stating her property was on the public beach and subject to removal under the Open Beaches Act. She was later offered up to $40,000 in public money to move each house off the beach. Instead, Severance sued, claiming the public’s right to access the beach violated her constitutional rights.

In 2010, the Texas Supreme Court issued an opinion in the case that called into question the public beach easement, a key provision of the Texas Open Beaches Act. The Court ruled that despite centuries of the public use, a public beach easement does not exist on West Galveston Island because the original Republic of Texas land patent from 1840 failed to reserve the public’s right to use the beach.

The Court stated in today’s ruling that even for areas where a public beach easement could be proven by the State, that easement did not “roll” landward and would effectively be extinguished after each new storm event or hurricane that moved the line of vegetation.

The 2011 opinion threw the Texas tradition of public beach access into legal limbo and caused Patterson to cancel a much-needed $40 million beach renourishment project on West Galveston Island.

The opinion also triggered a robust response from Texans defending the Open Beaches Act that resulted in a rehearing that was ruled on today.

[Jax]

This is really sad.

[LTAWACS]

No bueno.

[plumber2]

It's pretty sad that someone from out of state can change decades of public access to our beaches. This would not have happened if these consevative judges would have looked back at the reason for the open beaches act in the first place. I guess the decision is a product of our time. Now we can sit back watch landowners slowly fence in the open stretches of beaches that are currently considered public. No one will have the amount of money needed to challenge them.

I know this for a fact because I have cousins that own beach front property in Bolivar that their parents bought prior to 1959 that indicates the property boundary on the deed to be the water line, not the vegetation line.

[TheNiche]

I would agree, this is not good policy. Between this and water privatization, the Texas Supreme Court has been overreaching in a bizarre way just lately. I would hope that the legislature responds appropriately, even if it triggers 'public takings' that have to be reimbursed to the property owners.

[zaphod]

bunch of crap.

In any case, would it be such an awful use of tax money if the state bought some narrow parcels and put in public access ways? In other states it's how they do it.

[Marksmu]

I think the fear of a fence on a beach being built is unfounded....There is no question that a person can not own even a smidgeon into the water....if they build a fence upto the water line you can walk around it....Besides, give it one maybe two years max, and mother nature will destroy the fence too.

A metal fence will rust so fast it would not be worth building and a wooden fence will be destroyed by tides.

I don't think the decision is a good one, but I also don't think that the State should have had the power to order someone to relocate her house. If the state had been reasonable, and not threatened to remove the person's house and just left it alone this would not be an issue.....The State tried to overreach in my opinion by ordering the house removed. To have your house survive a hurricane is a huge relief for a owner - I find it hard to believe that people do not support a persons right to not have the state order them to remove their house from their property because the vegetation line moved....

I see this from both sides, but it is hard to stomach the state telling you that what was yours is now theirs, and by the way your house is on it, so ya, were going to need you to move that house or we will remove it for you. Pretty tough to stomach.

If your not watching closely the EPA is also making similar land grabs with respect to wetlands...though the EPA is much more aggressive than the State and is aggressively classifying non-wetland areas as wetlands...

[TheNiche]

I don't think the decision is a good one, but I also don't think that the State should have had the power to order someone to relocate her house. If the state had been reasonable, and not threatened to remove the person's house and just left it alone this would not be an issue.....The State tried to overreach in my opinion by ordering the house removed. To have your house survive a hurricane is a huge relief for a owner - I find it hard to believe that people do not support a persons right to not have the state order them to remove their house from their property because the vegetation line moved...

I don't think that the definition of the improvements as a "house" had anything to do with the decision. It's not even as though it were homesteaded, and for that matter if Severance's house "survived" the storm, then it was pretty horribly wounded, whatever that means to you. I don't think that it is unreasonable to define any improvements on the beach as "debris" justifying removal. It shouldn't matter if its a mattress, a pile of destroyed lumber, or an entire house.

And if it being a house is an issue, then this should be a simple enough matter of prohibiting utility hookups to structures on the beach. A storm comes through, interrupts sewer service, and places the house on the beach...and for environmental reasons, its sewer service can never be restored and nor can a septic tank be emplaced. If the house doesn't qualify as debris quickly, then it will qualify as debris slowly. But the eventual effect is and should be the same.

If your not watching closely the EPA is also making similar land grabs with respect to wetlands...though the EPA is much more aggressive than the State and is aggressively classifying non-wetland areas as wetlands...

The EPA is doing the opposite of what the State is doing; it is somewhat arbitrarily taking rights from property owners without forewarning, reasonable expectation of such a taking, or any beneficial public purpose. And yes, I agree that they should be more open to scrutiny and made less aggressive.

[RedScare]

I think the fear of a fence on a beach being built is unfounded....There is no question that a person can not own even a smidgeon into the water....if they build a fence upto the water line you can walk around it....Besides, give it one maybe two years max, and mother nature will destroy the fence too.

The fear is not at all unfounded, as it is already occurring...just not yet on our beaches.

http://danshamptons.com/article/stories-dans/stories-dans/fencing-it-off-this-beach-in-front-of-my-house-is-mine-everybody-else-take-note/

[plumber2]

Well, mother nature can indeed destroy just about anything, however I remember fences at Bolivar going out into the water when I was young. These were mainly for cattle. The fence posts were re-purposed railroad iron, driven into the sand several feet deep.(Probably just readily available material from the abondoned railroad that once ran down the middle of the peninsula.) These iron posts stayed for years, long after the landowners had moved their cattle fences back behind the dunes. I know because these posts were quite dangerous at low tide, and in the middle of the night. We took pity one summer and put reflectors on the some of the dangerous ones, but that only lasted one season or so.

[Pleak]

Good for Galveston.

http://www.chron.com/news/houston-texas/article/Galveston-cuts-private-beach-services-3758431.php

"The Park Board on Aug. 14 will consider recommendations from an advisory committee to remove trash cans placed along miles of now private beach and restrict litter removal to the wet beach, the part covered by tides, which remains public."

Hopefully they will vote to stop cleaning the new "private beaches". Maybe redirecting the funds they have will keep the remaining public beaches a bit cleaner. It's been a pretty bad year for seaweed and debris.

[plumber2]

It's ashamed that some greedy out of state lawyer has caused such a mess. Property owners beware, you are on your own.

[TheNiche]

It's ashamed that some greedy out of state lawyer has caused such a mess. Property owners beware, you are on your own.

It would seem to me that this is just an attempt by the City of Galveston to shift the burden of the cost of a program onto West End subdivisions, where there tend to be higher property values and fewer permanent (voting) residents per structure...using the populist angst over the SCOTEX decision as a red herring for what's actually happening.

[RedScare]

Red herring or not, it is the proper thing to do. If the property is no longer government land, the government has no business caring for it. Galveston rightly should spend taxpayer dollars caring for taxpayer owned land. It's not like Galveston is flush with cash, looking for charitable projects to spend it on.

[Pleak]

Red herring or not, it is the proper thing to do. If the property is no longer government land, the government has no business caring for it. Galveston rightly should spend taxpayer dollars caring for taxpayer owned land. It's not like Galveston is flush with cash, looking for charitable projects to spend it on.

My thoughts exactly. Galveston will still apparently clean the "wet" part of the beach as that is still public land.

Unintended consequences can be a real pain in the butt.

[samagon]

It's ashamed that some greedy out of state lawyer has caused such a mess. Property owners beware, you are on your own.

I don't like that the beaches aren't public land any longer, but I fully support the state not spending my money to clean private property. That is unless the state wants to come clean out the trash cans in my house.

[Blade Runner]

Just to be an ass, I've a good mind to go down there, and plant my beach chair JUST inside the water line, (where it's still "public" land) and maybe make a day of it. Repeatedly. I'd incourage others to do the very same.

[VicMan]

Would it be possible that some of the private beach owners may become so fed up with maintenance costs that they will try to sell the beaches back to the state or city?

[TheNiche]

Would it be possible that some of the private beach owners may become so fed up with maintenance costs that they will try to sell the beaches back to the state or city?

Either that or grant a public easement, but yes, absolutely. The only thing that may prove tricky is that such an agreement would have to be in Galveston's budget and strategic interests. (The City may not want to maintain a tiny and obscure segment of beach half-way between two pocket parks unless they can also pick up adjoining parcels.)

[RedScare]

The bigger problem for these new beach owners is not clearing away piles of seaweed and beer cans, but the fact that these beaches have a habit of wandering away. Previously, the State would occasionally pump sand back onto the beach. It now falls to the new beach owners to decide if they want to keep their property from washing away or replenish it themselves.

[gto250us]

For me this whole argument is Bullcrap. Barrier islands move. That is a simple fact that cannot be changed. Anyone that buys properties on something that is continually moveing, eroding, changing shape should take all risk for losing their property to a storm. I say park your beach blanket on any sandy area you like and bring on the cops.

[TheNiche]

I say park your beach blanket on any sandy area you like and bring on the cops.

Go ahead. Make their day.

Be sure and post photos.

[RedScare]

Speaking of photos, have any homeowners down there started fencing off the beach yet? Other than piles of unremoved seaweed, is there any noticeable change to West Beach? Any photo evidence of it?

[samagon]

I was thinking about this a bit over the weekend, I wonder if any of the beachfront landowners are going to choose to NOT clean up the seaweed as it likely help reduce beach erosion?