Pacific Legal Foundation Principal Attorney J. David Breemer, who argued the case of Severance v. Patterson in the Texas Supreme Court, issued the following statement today in response to the press release issued today by the Texas General Land Office:
Recently, in the Pacific Legal Foundation case of Severance v. Patterson, the Texas Supreme Court did something that the Texas General Land Office (GLO) should have done long ago: it recognized that the state cannot use a storm that does no more than blow away the vegetation from private land as an excuse to take that land for use as a new public beach park. This decision is based on traditional principles of Texas law that mark the public beach at the high tide line and require proof of an easement or compensation before private inland properties can be taken for a public park. Severance does not limit public access to public beaches; it limits public access of private land.
Since the GLO has unlawfully been telling the public for many years that they can have access to private land for free whenever a storm blows away the beach grass, it is not surprising that some have been caught off guard by the Severance Court’s declaration that private property does not become public just because it becomes sandy. If the GLO had told the public the truth about property owners’ rights from the start, and planned accordingly, instead of concocting and promoting its now illegal “rolling easement” theory for confiscating private land, there would be no public surprise or confusion now. Lawful public access to private land is and was always contingent on payment of compensation or proof that the public always occupied the specific area of private land.
The GLO has a chance to correct course now. Unfortunately, instead of accepting responsibility for creating erroneous public expectations with its unconstitutional rolling easement theory, it has chosen to attack Pacific Legal Foundation for daring to challenge its theory. Today, state Land Commissioner Jerry Patterson has gone so far as to blame PLF for causing a halt to a Galveston Island beach re-nourishment project. This is a red herring. Nothing stops the GLO from putting new sand on any easement area it has properly proven or acquired. Since it may have long ago proven a static public easement on West Galveston shores seaward of Ms. Severance’s house, it may be able to put sand on that area to preserve public beach use there. Mr. Patterson can also seek agreements with upland property owners to put sand on their land in exchange for public access. But Mr. Patterson’s hasty announcement to stop the Galveston beach re-nourishment project says nothing about these options. Instead, it points the finger at PLF. The public would be better served if Mr. Patterson heeded the message—private land is not yours unless you acquire it by consent, proof or payment—instead of blaming the constitutional messengers at PLF.