Coastal private property rights remain intact – a win for property owners, and for Texas taxpayers.
Hurricane Rita’s destruction of West Galveston Island moved the vegetation line inland and many property owners suddenly found their homes sitting on the beach. Under the Texas Open Beaches Act, the state claimed that the public had the right of access to their property as part of the public beach. But a recent Texas Supreme Court ruling casts doubt on that claim.
After Rita, some beachfront property owners, including Carol Severance, were told by the General Land Office that since their land was seaward of the new vegetation line, it was now part of the “public” beach. Landowners, not content to let their property rights vanish, filed suit against the state.
Carol Severance fought her way to the Fifth Circuit Court of Appeals in defense of her constitutional right to her land or to receive compensation for loss of that right. The Fifth Circuit then asked the Supreme Court of Texas for guidance in helping them understand the application of the Open Beaches Act.
The legal question centered on whether there is any such thing as a “rolling” easement: since the state did not have an easement over the land prior to Hurricane Rita, how can it have one afterward? The Texas Supreme Court found that it cannot.
Justice Wainwright delivered the majority opinion, holding that although public easements burdening properties along the sea may shrink or expand gradually with the properties they encumber, this does not apply to major events such as storms and hurricanes that drastically alter pre-existing boundaries.
There are some who argue that this decision takes away the rights of Texans. The argument is that Texans have always had a public right of access to the dry beach – between the mean high tide and the vegetation line.
However, this argument misstates the law. The public has only had access to the dry beach where an easement was established through continuous public use.
As the Court put it, the public easement “does not migrate or roll landward to encumber other parts of the parcel or new parcels as a result of avulsive events” like a storm.
The Texas Supreme Court’s decision is a step forward in preserving private property rights in Texas. According to Dave Breemer, a principal attorney with Pacific Legal Foundation, who argued the case before the Texas Supreme Court, the “ruling is a forceful victory for property owners everywhere, because it deals a powerful blow against government schemes to seize private property without just compensation.” Mr. Breemer goes on to say that the Court’s decision rejects the “concept of shifting beach easements, because it washes away fundamental property rights.”
The Texas Supreme Court’s decision was cited by the General Land Office as the reason it halted a $40 million project to renourish Galveston’s beaches. The project called for building beaches 60 to 90 feet wide and creating new sand dunes spanning 12 subdivisions.
Though the project would have benefited some land owners and perhaps other residents in Galveston, with the state facing an $11 billion or more budget shortfall, adding $40 million to the hole might not be best for the rest of the state.While the decision is a mixed blessing for beachfront property owners-they get to keep their land but may lose the replenished beaches-it is the correct decision for Texas. The fundamental right to own and use private property has been upheld, and Texas taxpayers will not have to pay for a costly project in the face of the pending budget shortfall.
Ryan Brannan is an economic freedom policy analyst at the Texas Public Policy Foundation, a non-profit, free-market research institute based in Austin.