Every day, we discover new areas in which Texas is the national leader in freedom and prosperity. Of course, these two go hand in hand; it is our commitment to freedom in Texas that has made us a leader in prosperity.
It shouldn’t surprise us then that the relatively obscure Texas Open Beaches Act is one of those areas where Texas is also a national leader.
Around the country, you generally see two types of schemes related to beaches. Either beaches are private, or property rights have been trampled in the effort to make beaches public. These extremes are not the case in Texas, where through the Open Beaches Act we have established a carefully balanced approach to providing Texans with access to the state’s beaches.
I have firsthand experience with this. In 2003 and 2004, I ran the Coastal Resources Division at the Texas General Land Office, and was responsible for administering the Open Beaches Act. During my time at the GLO, I traveled up and down the Texas coast learning about this issue and how to deal with the problems that arose from it, especially when storms hit the coast. My analysis of this bill is based on my experience from the Land Office, a commitment to private property rights, and the expert legal analysis of my colleague Vikrant Reddy, who filed an amicus brief before the Texas Supreme Court in the recent case on this issue, Severance v. Patterson.
Let me begin my analysis by clearly stating this point: HB 3459 will result in an unconstitutional taking of private property. It will do this by placing a public easement on private property without compensation. Taking property without compensation is prohibited in Art. 1, Sec. 17 of the Texas Constitution.
The problem with HB 3459 is that is destroys the finely-crafted balance of the Open Beaches Act. It does this by mandating that the landward boundary of the public beach easement be always identical to the line of vegetation (LOV)-either the line of vegetation as naturally occurring or as determined by the land commissioner. Specifically, HB 3459 says, “The line of vegetation, as determined by the commissioner under Subsection (f), shall constitute the landward boundary of the area subject to public easement …”
This is in direct contrast to the Open Beaches Act, which was recently enshrined in the Texas Constitution. Instead, it says, “‘public beach’ means … 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.” In other words, most of the time the line of vegetation marks the boundary of the public beach. But not all the time. The Constitution clearly makes the relationship between the LOV and the boundary to the public beach conditional.
Now, the LOV doesn’t stay in one place. It can move, and the boundary to the public beach can move with it. This happens when the beach erodes or accretes, and the LOV shifts landward or seaward. The Texas Supreme Court affirmed this drifting easement in Severance v. Patterson when it wrote: “we do not require the State to re-establish easements each time boundaries move due to gradual and imperceptible changes to the coastal landscape.” That’s because when the LOC shift an inch or two in a year, the public reestablishes the easement by walking along the beach, from the water to the LOV.
So when is the LOV not the boundary to the public beach?
The Texas Supreme Court speaks to this as well: “However, when a beachfront vegetation line is suddenly and dramatically pushed landward by acts of nature, an existing public easement on the public beach does not ‘roll’ inland to other parts of the parcel or onto a new parcel of land. Instead, when land and the attached easement are swallowed by the Gulf of Mexico in an avulsive event, a new easement must be established by sufficient proof to encumber the newly created dry beach bordering the ocean.”
What this means is when a hurricane or tropical storm and overnight shifts the LOV landward, the public beach easement does not move with it. The two will almost certainly come together again, but not until some time has passed so that the LOV can reestablish itself and the public can establish the new boundaries of the beach easement through renewed public use.
This period of waiting naturally makes us uncomfortable. We all like the world to be black and white. This brief period of uncertainty-with adequate rain, the LOV can reestablish itself with 6 months and the public can again start establishing the easement-is the beauty of the Texas Open Beaches Act. Only in this are we not forced to choose between the extremes of private beaches and abusing private property rights.
There is one other way to approach this. If we really want to end the uncertainty of the Open Beaches Act, the state of Texas and coastal counties and cities can under current law establish a new easement after a storm by paying property owners compensation through eminent domain.
That doesn’t need to happen, though. Though the Texas Public Policy Foundation opposes HB 3459 in its present form, it can be easily improved to provide much more clarity to the law by following the language of the Texas Constitution and the Supreme Court.
One more thing: some make the case that property owners know they are taking a risk that their beach front property might be lost in the case of a storm. That is certainly true. But there is a difference between the ocean washing away one’s land and the government taking it by placing an easement on it, which is what would happen if HB 3459 were to become law. Here is what the Supreme Court said on this issue:
JUSTICE MEDINA’s dissent also dismisses Severance’s grievance as a gamble she took and lost by purchasing oceanfront property in Galveston and argues that she would not be entitled to compensation even though an easement had never been established on her parcel, a portion of which is now in the dry beach. It notes the OBA requirement of disclosure in executory contracts of the risk that property could become located on a public beach and subject to an easement in the future. See TEX.NAT.RES.CODE § 61.025. This is incorrect for three reasons. First, beachfront property owners take the risk that their property could be lost to the sea, not that their property will be encumbered by a easement they never agreed to and that the State never had to prove. Second, putting a property owner on notice that the State may attempt to take her property for public use at some undetermined point in the future does not relieve the State from the legal requirement of proving or purchasing an easement nor from the constitutional requirement of compensation if a taking occurs. … Third, simply advising in a disclosure that the State may attempt to enforce an easement on privately owned beachfront property does not dispose of the owner’s rights.