Texas has long prided itself on its Open Beaches Act, which guarantees public access to beaches along most of the states 367-mile Gulf Coast.
But public beach advocates say a recent Texas Supreme Court decision which is supported by the front-runner in the race to be the state's next land commissioner and a growing property rights movement could endanger that guarantee. They fear that as beaches face impacts from coastal erosion, rising sea levels and the threat of powerful storms, private property rights could take precedence over access to public beach access.
We have two rock-solid principles: public access to public beaches, and the right of private owners to exclude others from the property which is theirs, said David Abraham, a law professor at the University of Miami. Theyre always in tension, but if we face issues like sea-level rise and increasingly severe storms, theres going to be less stability in that balance.
For decades, the Open Beaches Act which was voted into the Texas Constitution in 2009 was a signal to coastline property owners that if erosion or a storm wiped out the public beach behind them, their homes could become state property. In the past several years, the General Land Office, the state agency that deals with coastal issues, has taken 18 properties for such reasons, reimbursing owners $50,000 each.
After Hurricane Rita hit Texas in 2005, Carol Severance sued the state after it said her Galveston property was now in the public domain. In 2010, the Texas Supreme Court ruled in her favor, saying the property remained private because the beach had been wiped out through an avulsive event, like a big storm rather than imperceptible coastal erosion.
Public beach advocates say the decision went too far. Rob Nixon, chairman of the Surfrider Foundations South Texas chapter, said it sets up unrestricted development of the coast, which is going to ultimately put the Texas taxpayer and public on the dime for bailing all these people out.
But many private property rights advocates hailed the ruling. Among the supporters is George P. Bush, a Republican widely expected to win the November election to head the General Land Office.
I dont believe that the state should take land in the event of storms, Bush said recently during an event hosted by The Texas Tribune. He added that landowners whose property has been taken were not compensated enough, and that there are many other places along the coast that the public can access without threatening private property interests.
The current land commissioner, Jerry Patterson, who was named in the Severance lawsuit, has excoriated the Severance ruling as weakening public access in a Californication of Texas beaches. As a result of the decision, the General Land Office canceled a $40 million beach nourishment project in Galveston for fear of illegally spending public money on private land.
Patterson said he feared more similar projects would have to be abandoned.
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