April 4, 2012

Severance aftermath: There they go again

By J. David Breemer Senior Attorney
Carol Severance's beachfront property
Carol Severance's beachfront property

Although it is not entirely unexpected, the handwringing in Texas over the recent Severance beach property rights decision has reached a fever pitch. The decision held, of course, that “Texas does not recognize a rolling [beach] easement” that turns private land into a public beach the moment the land loses its vegetation and becomes a dry sandy area.

Those objecting to the decision claim that it gutted state open beaches laws and traditions protecting public access to the vegetation line, in effect granting beach front property owners a new right to own the beach.  They further claim that the decision will “close” the beaches to the public and prevent maintenance.

Mr. Patterson, the Commissioner of the Land Office and defendant in Severance, is leading the charge. He claims that after Severance “we now have private beaches in Texas where the public can be excluded” and  that the government “will no longer be able to put new sand on West Galveston Island beaches or clean debris after a storm.”  He urges Texas voters to oust the elected judges who issued the Severance opinion.  At his side is Harris County Attorney Vince Ryan, who claims Severance “is a challenge to a tradition that’s been here since the settling of the state of Texas to the concept that all beaches are open to the public,” and Babe Shwartz, who says the Court “acted in the most absurd and irrational way in this case that one can imagine.”

Wow. Not only is this invective unbecoming in a society based on ordered liberty, it is utter non-sense.   The Severance decision did not gut the Open Beaches Act or any other Texas law. It enforced it.  The Open Beaches Act does not say and never said that the public has automatic access rights to all private beachfront land seaward of the vegetation.  If you doubt it, read it.  It says the public has access rights to the vegetation line “IF” the public has acquired an easement in that area under common law rules, rules that require proof of actual, prior public use of the area.  The right of access on dry sandy beach areas was always conditional. All the Court did in Severance was say that the State must meet the conditions of the law– proof of an easement- before they impose an easement.  This is exactly what the government must do in every other part of the state of Texas. Texas officials have carried out the most successful indoctrination campaign in state history in convincing many that the vegetation line automatically defines the boundary of public beach. It does not and never has. Thus, it is the state, not property owners, who have attempted to re-write the law; the state does not want to bother proving the existence of easements, as the Open Beaches Act mandates, so it pretends no such requirement exists.

The Severance decision took nothing from the public, and gave nothing new to property owners. It simply declared the rights they have always had under the law. If it is surprise to some, it is only because state officials have never correctly or fairly communicated ALL of the law’s requirements and conditions to their constituents.  Beachfront property owners have always held ownership of dry sand to the waterline, and the corresponding right to exclude others from their property if they choose, but subject to loss of that right if and when  the state proves the existence of public easement on their land in court.  Moreover, Severance does not end the government’s ability to secure beach access; it takes away none of the government’s traditional and lawful ability to acquire additional beach access on private land by purchasing lots, buying beach easements from property owners, or acquiring them by agreement.  All it does is say the state cannot instantly turn private land into public land simply by documenting that the land is a sandy lot instead of a vegetated one.

As for Patterson’s claim that Severance prevents beach-renourishment projects and trash removal, neither is true. Patterson knows or should know the state owns title to all beaches to the high tide line and can regulate and maintain that area. Severance does not change this. If trash is in the area from low to high tide, it is on state property; nothing prevents its removal at public expense. If it is on private upland, it’s the owner’s responsibility.

Similarly, to  re-nourish the beach on Galveston Island tomorrow, all Patterson must do is allow sand to be dumped on the shore to the high tide line, creating a new strip of publicly accessible beach.  In fact, this is exactly what Commissioner Patterson recently did in Surfside, Texas, after the original Severance decision, which the Commissioner also claimed prevented re-nourishment projects. While the Commissioner has been loudly withholding renourishment in Galveston, saying Severance makes it impossible, he has authorized and finished a project in Surfside in the same period by purportedly filling in tidal areas. Something does not add up.   Indeed, after the original Severance decision, the property owners on Galveston Island told Patterson they were willing to give the state an easement over their beachfront areas above the high tide line in return for a renourishment project there.  Patterson said “no.” It would take too much time to acquire easements from so many owners, he said.  I am fairly sure it would not have taken longer than the year it took for the state to litigate the Severance case on rehearing. The easements and sand could be there now.

The bottom line is that if re-nourishment does not occur on Galveston it is only because the Commissioner chooses not to do it. Whether he does so out of enmity to the property owners down there or a desire to continue generating angst and opposition to the Texas Supreme Court’s decision in Severance is unclear. Certainly, after the first Severance decision, Patterson’s threat to withhold re-nourishment funds succeeded in scaring many local governments to file amicus briefs against Severance on rehearing. I guess if it works once, try it again.

Fortunately, the Texas Supreme Court is not easily cowed.  They made the right decision after almost three years of considering the Severance case, despite intense pressure from Mr. Patterson (He even filed an amicus brief on his own behalf despite being a party in the case), and many other governmental officials signing onto amicus briefs.

For their courage, Patterson is now publicly urging voters to oust the Severance judges. Is that how it works?  Don’t like a constitutional right, then get rid of the judges who enforce it. Doesn’t sound like freedom to me. The Court and its carefully thought-out decision deserves respect, even from those who disagree. But it is hard to find that commodity among those who can’t let go of the idea that they deserve to forever obtain beaches on private land without cost or effort.

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