July 3, 2014

Texas court confirms boundary rules that leave dry beaches in private hands

By J. David Breemer Senior Attorney

Today, the Texas Supreme Court issued an opinion in Porretto v. Patterson, a complicated beach takings case.  The Porrettos have owned a dry beach area in Galveston, Texas, since the 1950’s. Some of their property lies just seaward of the Galveston seawall, between the wall and the wet beach area along the Gulf of Texas.  The Porrettos have historically used their land for beach concessions and parking.

In the mid-1990’s, the State began interfering with the Porrettos’ ownership. The State claimed it owned all the land lying seaward of the seawall, including the dry beach land to which the Porrettos held title.  It did so in part based on a survey showing that the State-owned beach extended from the sea to the Highest Annual Tide (HAT) Line, which the State claimed was coincident with the seawall. When the State dumped sand over the seawall onto the Porrettos‘ land and leased the renourished area to the City of Galveston, without the Porrettos consent, and then torpedoed the sale of the Porrettos‘ property, the Porrettos sued. They sought to quiet title to their dry beach lands and to hold the State liable for a temporary taking.

In the Texas Supreme Court, PLF field an amicus brief primarily to advise the Court that the State was continuing to ignore the Court’s prior decisions which rejected the vegetation line and HAT line as the landward boundary of the state-owned beaches and instead set it at the more seaward Mean Higher High Tide (MHHT) line (for land tracing to Mexican land grants). As noted above, in Porretto, the State ignored this rule and reduced the width of the Porrettos‘ property, while expanding the reach of the public beach, by setting the public/private property boundary at the HAT line, not the MHHT.

Today, the Court affirmed the Porrettos‘ ownership of the dry beach property they claimed, that the State beach extended inland only to the MHHT line — not the more inland dy area between the MHHT line and the HAT line — and that the State’s act of dumping sand on Porrettos‘ land did not cause the land to become State-owned. But it rejected the Porrettos‘ temporary takings claims.

Notably, a section of the opinion tracks PLF’s amicus brief in explicitly confirming earlier cases holding that the landward boundary of public beaches on the Texas coast is the MHHT line,  not the (farther inland) Higher Annual Tide Line or the vegetation line,  that dry beaches lying landward of the MHHT are private and thus, that the State has no inherent right to invade these dry beach areas for public recreation or otherwise.

It shouldn’t have taken another court decision for the State to recognize a MHHT beach boundary framework articulated by the Texas Supreme Court as long ago as 1956, and as recently as PLF’s 2012 Severance v. Patterson case. It has always been the case in Texas that the State owns only the wet beach, while dry beaches are private. As today’s decision makes clear, neither willful neglect of past court decisions on the part of State agencies nor legal gimmickry can change this.

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